WILL THE SUPREME COURT RAISE THE BAR FOR LAW ENFORCEMENT COLLECTION OF SUBSCRIBER LOCATION DATA?
The Supreme Court is now hearing a case that poses the question: what level of due process should a law enforcement agency (LEA) be required to meet before asking a communication service provider (CSP) to produce a criminal suspect’s historic cell phone location data? Based on the Court’s recent oral argument in the case, called Carpenter v. United States, it appears somewhat likely they will subject such location inquiries to the top-level “probable cause” standard. Why are the justices heading in that legal direction, and what would it mean for CSPs?
The Three Levels of Due Process for LEA Collection of Communications Data
Sometimes an LEA investigation requires agents to collect evidence from a suspect’s communications service usage. If the agents need the suspect’s basic subscriber information or past calling records, they can serve the CSP with a subpoena, and the CSP then discloses the requested information. Subpoenas are issued under the due process standard of “relevance,” which means the LEA believes the requested data is relevant to an ongoing criminal investigation.
If the agents need to know the suspect’s prior whereabouts based on his or her wireless handset location records, they must apply for a court order called a “2703(d) order” and meet a higher standard of due process called “specific and articulable facts.” Section 2703(d) of the Stored Communications Act sets the standard for LEA collection of such communications data. The grant of a 2703(d) order shows that the targeted “historic” location data is not only relevant to an ongoing criminal investigation but may also specifically link the suspect to the stated crime.
If the agents must know where the suspect is right now, they may need to see the suspect’s wireless location records in real time. Real-time location is generally considered especially private. For that type of evidence most courts would require law enforcement agents to demonstrate that the desired evidence will probably show the suspect committed the stated crime. The “probable cause” standard is the highest in the due process hierarchy.
Similarly, if agents need to listen in on a suspect’s phone calls in real time, or view the person’s Internet communications in real time, a judge would authorize such high-level privacy intrusions only if the LEA can show probable cause.
Notice that the three levels of due process – relevance, 2703(d), and probable cause – operate on a sliding scale. The more privacy-sensitive the data sought by investigators, the more evidence they must show to justify receiving court authority to access that data. In the top category of privacy-sensitive information, including real-time location and phone calls, courts have said the individuals have a “reasonable expectation of privacy” and therefore enjoy a Fourth Amendment right to the protection of probable cause.
The Due Process Challenge to LEA Collection of Historic Location Data
Timothy Carpenter belonged to a group suspected of several armed robberies of Radio Shack stores and T-Mobile stores in and around Detroit. The FBI agents who investigated the crimes applied for a 2703(d) order to obtain the gang members’ historic cell phone information, including historic location data. A magistrate judge granted the order. The location data placed Carpenter and his associates at the store locations at the times they were robbed. At trial, the jury convicted Carpenter, and the verdict was upheld by the Sixth Circuit Court of Appeals. Carpenter then sought review by the Supreme Court.
The question before the Supreme Court is whether the cell phone location data should have been excluded from the trial evidence on due process grounds. In Carpenter’s view, the FBI should have met the top-level probable cause standard, not the mid-level 2703(d) standard, before collecting his historic location data. The argument is that citizens have a reasonable expectation of privacy in both real-time and historic location data, and therefore both types of evidence deserve the Fourth Amendment protection of probable cause.
Until now, courts have applied the 2703(d) standard to historic location data based on the “Third Party Doctrine.” The Doctrine states that when an individual discloses personal information to a third party, such as checking account information recorded with a bank or telephone calling records accumulated by a phone company, the person no longer has a reasonable expectation of privacy in such “business records,” and thus no Fourth Amendment protection is required. Under this judicial approach, historic location data came to be viewed as another type of business record.
However, legal experts have criticized the Third Party Doctrine as inadequate to protect communication privacy rights. They claim that wireless subscribers are required to allow their handset locations to be monitored by the carrier for purposes of call routing, and such a system of involuntary data disclosure says nothing about the subscriber’s privacy interest in the data. The validity of the Third Party Doctrine has likewise been questioned by conservative and liberal justices on the Supreme Court. They have acknowledged that an LEA may obtain copious private information about a suspect if they can readily access the person’s whereabouts all day, every day, for months at a time.
Some observers predict the Supreme Court will overturn the Third Party Doctrine and find that citizens have a reasonable expectation of privacy in historic location data. In that event, the Court would require LEAs to start meeting the probable cause standard before collecting the historic data.
The Consequences if LEAs Must Show Probable Cause to Collect Historic Location Data
If LEAs must show probable cause to collect historic location data, CSP subscribers will gain more privacy protection for their location records. LEAs would likely encounter more difficulty solving crimes like the robberies in the Carpenter case
Such a slow-down in LEA investigations may lighten the LEA assistance obligations of CSPs. They would receive fewer court orders seeking historic location data. But if you’re a service provide, don’t start cheering yet.
LEAs might actually send CSPs more subpoenas for call records to compensate for the lack of historic location records. In cases where LEAs can demonstrate probable cause to intercept a suspect’s phone calls, they may as well request both real-time and historic location data, even if they don’t need the historic records to establish probable cause. Such scenarios could trigger a net increase in the CSP’s legal compliance burden.
In any event, the Carpenter case presents the Supreme Court with a significant opportunity to alter the sliding scale of due process in CSP-related investigations. Stay tuned. We will keep you posted as this important proceeding unfolds.