Lucy Koh Shows Judges Can Occasionally Get Tech
Aug. 5, 2015 (Mimesis Law) — Unless you’ve been living under a rock for quite some time, you probably know that your cell phone’s location is traceable. Your cell phone may generate historical cell site location information whether you are using it or not. A missed a call, an app running in the background, or simply searching for service produces data that can be used to track you whereabouts.
As is the case with most things tech-related, the volume and accuracy of that data has continued to increase over time. To law enforcement, your phone now might be as good if not better than a GPS tracking device. And you willingly created the data for their benefit. It’s for that very reason that a recent Northern California U. S. District Court order from Judge Lucy Koh about historical cell site location information, or “CSLI” as she calls it, is both troubling and encouraging.
The government had attempted to get CSLI not by obtaining a warrant supported by probable cause, but through a provision requiring only “specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” The government wanted to know where a phone, and presumably its owner, were for the sixty days prior to its request. Who needs to plant tracking device when we all voluntary purchase them and keep them close at hand?
The order is troubling for the obvious reason that the government was trying to obtain detailed information about someone’s whereabouts for two months without showing probable cause. It’s encouraging because the court would not allow it. The court’s conclusion states what should be painfully obvious:
[T]he Court concludes that cell phone users have an expectation of privacy in the historical CSLI associated with their cell phones, and that society is prepared to recognize that expectation as objectively reasonable. Cell phone users do not expect that law enforcement will be able to track their movements 24/7 for a sixty-day period simply because the users keep their cell phones turned on. That expectation, the Court finds, is eminently reasonable.
As technology invades more and more aspects of our lives, it gives law enforcement the ability to do the same. The newest, shiniest thing for consumers may be the newest, shiniest thing for authorities as well. Each little advance makes our lives a little easier or a little better might do the same for them. It’s sort of like a cat and mouse game, except we frequently don’t realize we’re playing it.
Notably, the tracking issue arose before the Supreme Court in United States v. Jones, where a GPS tracking device was attached to a car on day 11 where a warrant authorized its placement for ten days. The Court held that it was an unlawful search, having been installed subsequent to the period allowed by the subpoena.
In Judge Koh’s case, however, the CSLI was maintained by the cellular provider, implicating the Third Party Doctrine of Smith v. Maryland.
[T]he third-party doctrine applies when an individual has “voluntarily conveyed” to a third party the information that the government later obtains.
Cell phone users, by contrast, do not “voluntarily convey” their location to the cellular service provider in the manner contemplated by Miller and Smith. This is especially true when historical CSLI is generated just because the cell phone is on, such as when cell phone apps are sending and receiving data in the background or when the cell phone is “pinging” a nearby cell tower.
Judge Koh clearly had a sophisticated understanding of what the government was seeking, and was disinclined to simply adopt its view.
Had a magistrate not denied the CSLI request in the first place, the government would have simply gotten the data, and the subject of the investigation might have never known. That could have been the case even if the subject was eventually charged with something. I have certainly never seen CSLI disclosed by a prosecutor, though there are plenty of cases where I strongly suspect they obtained it.
Reading the order, I can’t help but wonder how many cell phones the government has tracked without a warrant. I wonder how many judges outside of tech-savvy Silicon Valley don’t understand the technology and just how invasive it really is. I also wonder how many other judges wouldn’t care if they did.
Deciding privacy matters involving technology requires not just a substantial understanding of the technology, but actually caring about privacy as well. Luckily for people in the Northern District of California, Judge Koh seems to have both requirements covered.
Main image via Flickr/Gary Lerude