2d Circuit Uses The Pimp Hand To Uphold Searching Cellphone GPS Data
December 6, 2016 (Fault Lines) – If you’ve been to the movies lately, then you’ve problem been greeted by Oliver Stone. You know the director of JFK, Wall Street, Platoon, and the new movie, Snowden. Stone is no stranger to conspiracy theories—see e.g. JFK. And he’s got a strong anti-government streak—pick a movie.
So, while you’re sitting there waiting for your movie to start, Stone comes on the screen to promote Snowden and scare you about cellphones. In a nutshell, they are pretty close to being court reporters that can provide overwhelming evidence of criminal conduct, if you’re in to doing those sorts of things. Or possibly even if you think you’re not committing crimes. Just because you’re paranoid doesn’t mean that they really aren’t out to get you.
Cell phones, and smartphones in particular, require you to surrender a lot of privacy to use them. Besides the information consuming apps like Facebook, even the basic operation requires divulging information to the carrier. Who you call, when you do, and how long you talk, when evaluated with similar data from other phones, can reveal a lot. This idea was the basis of the NSA’s metadata collection program.
More than this, cell phone providers collect location data, by the nature of the phone having to communicate with a nearby tower. And some services layer GPS data over this. GPS information is precise enough to drop a bomb on you from many, many miles away. And when viewed historically, like call history, the location data can tell you a lot about the person. So, you might imagine the ability to collect cell phone related data can lead to abuses, just as more conventional electronic surveillance methods can and do.
This means if you’re a pimp, cell phones might facilitate getting customers, but it gives law enforcement a way to find you and possibly incriminating evidence. Jabar Gilliam was such a pimp, who was convicted of human trafficking of a minor called Jasmin. Gilliam “stole,” which is not the right word, Jasmin from another pimp. He then took her to New York, forced her to have sex with him at his own mother’s apartment, and then prostituted the girl out.
From the published opinion, it seems like poor Jasmin had a rough life already, as suggested by having a biological mother, a foster mother, and a case worker. The Second Circuit did kindly note that the social worker “expressed concern that Jasmin was being forced into prostitution by Jabar Gilliam.” Also, bio mom seemed to know Jasmin was being prostituted. Forget it Jake, it’s Chinatown.
Based on the bio mom and social worker “expressing concern” about Jasmin being a prostitute, when confronted by law enforcement, the officer contacted Sprint to locate Gilliam via his phone’s GPS. The officer alleged that “an exigent situation involving immediate danger of death or serious bodily injury to a  person” required that he locate Gilliam. It’s not clear if the officer knew Jasmin had been assaulted and raped by Gilliam at this point. Instead, the Second Circuit relied on the conclusion that sexual exploitation “has often been found to pose a significant risk of serious bodily injury.” Others would take issue with that suggestion. Gilliam had argued that this wasn’t truly an exigent circumstance.
The reason it mattered is that Congress passed the Stored Communications Act. Because of our friend, the third-party doctrine, the Fourth Amendment would not necessarily require a warrant before receiving communications held by ISPs and cell phone carriers. Under current Fourth Amendment doctrine, simply using your phone is sufficient to allow these companies share your location and other data with the government. So, kindly Congress, fixed this problem by statute. But it built into the statute an escape hatch:
(c) Exceptions for Disclosure of Customer Records.—A provider described in subsection (a) may divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a)(1) or (a)(2))— * * * (4) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency * * *.
While not specifically called out by the statute, “other information” has been interpreted to include location data. A broad reading makes sense, when the purpose of the statute is to provide protection against the drafter, i.e. the government. No surprise that the Second Circuit made a similar finding. The exigent circumstance factor was the one really at issue, which the Second Circuit made short work of as well.
After losing the bigger argument of whether these facts could support a finding of exigent circumstances, Gilliam argued that Jasmin was not in immediate danger. Second Circuit had none of that either, making an analogy in support of its conclusion:
That argument calls to mind the plight of social workers who have to decide whether to face a lawsuit for quickly removing a child from the home of an abusive parent or for failing to act in time to prevent the child’s injury. “If they err in interrupting parental custody, they may be accused of infringing the parents’ constitutional rights. If they err in not removing the child, they risk injury to the child and may be accused of infringing the child’s rights.”
Not a particularly compelling analogy or analysis.
At the end of the day, the law enforcement officer made the right call, risking a suppression problem in favor of finding a child, who appeared to be sexually exploited. But the absence of any real analysis or distinguishing material facts, it makes the next warrantless search, with less urgent circumstances, easier to justify. Law making, basely purely on good intentions, is a slippery slope to bad results.