Ruling rejects 3rd Party Doctrine underpining warrantless metatdata collection
On Wednesday, 2014.06.11, the United States 11th Circuit Court of Appeals made a landmark ruling in United States v. Davis, Case No. 12-12928, effectively prohibiting the use of cell phone tracking metadata obtained without a court warrant, and opening the door to similar rulings in cases where internet metadata is at stake, including the passive and active interception of such data by the NSA.
While the ruling only applies at present to the 3 states of the court's jurisdiction - Florida, Georgia, and Alabama - it could have wide ranging effects and was lauded by civil liberties and constitutional lawyers as an important affirmation of 4th Amendment protections.
Writing in Just Security, Jennifer Granick, Civil Liberties Director at the Stanford Center for Internet and Society, stated:
Today, the Eleventh Circuit rejected the exceedingly common law enforcement practice of warrantlessly tracking suspects’ physical location using cell phone tower data. The opinion, United States v. Davis, is both welcome and overdue. Defendants who have and will be physically tracked without a warrant have new legal support to challenge that surveillance. Additionally, because the case involved stored cell site data, Davis undermines the government’s legal arguments that other warrantless “metadata” collection practices are constitutional. [ ... ]
Other bulk “metadata” collection programs have included Internet transactional records, financial transactions and more. The similarities between these categories of information, consumer expectations and knowledge, and the phone numbers dialed in Smith is even more attenuated. Davis, by refusing to apply Smith [Smith v. Maryland] and Miller [United States v. Miller] in a stored phone records case, has taken a giant step away from the legal justification propping up many of the government’s targeted and bulk metadata collection practices.
Over the fold, let's explore some key points and how this could impact indiscriminate warrantless collection and use of electronic data.
In the opinion, Justices Martin, Dubina and Sentelle vacated part of a 1,941 month (162 year) sentence where the defendant, Quartavious Davis, a first offender, was convicted of a string of robberies in a trial where tracking data from his cell phone used as evidence to fix his proximity to crime scenes was obtained without a warrant, an increasingly common practice known as Tower Dumping that is usually justified by citing the Third Party Doctrine.
The court noted (emphasis mine) :
“In short, we hold that cell site location information is within the subscriber’s reasonable expectation of privacy. The obtaining of that data without a warrant is a Fourth Amendment violation.”
Behind that categorical statement, of course, was an extensive review of the trial and ruling under appeal, and the case law underpinning the decision (citations linked at end of diary)
Legal Background of the Decision
In defending the search of 11,000+ cell tower records, the prosecution cited Smith v. Maryland (1976) where SCOTUS ruled customers dialing a phone had no reasonable expectation of privacy for transaction records of phone calls (metadata) since they willingly transmitted numbers to the phone company when dialing, and therefore the records were not subject to 4th Amendment protections. This argument has since been expanded in practice to justify surveillance and collection of various types of metadata including transaction records, email and various other electronic records, including in this case, cell tower to cell tower transaction data that was mapped to determine approximate location of the defendant.
It should be noted that, at the time of these decisions, such data was simple and required targeted surveillance by attaching a pen register to a telephone line to record the data, so the application was limited and painful. However, since the advent of digital switching, such data is usually collected by passive surveillance meaning automated bulk collection of all transaction details, which in the case of cell phone or internet transactions, provides detailed information that can be analyzed to construct various relationships and patterns including tracking, a fact civil libertarians have argued is more intrusive and powerful than content in many cases - the essence of the argument against NSA collection of metadata.
Bolstering this was citation of United States v. Miller where SCOTUS ruled that bank transaction records were the property of banks, and therefore do not require a warrant to be searched, the inference being cell records are telephone company property.
In reviewing the appeal, the Court also considered Katz v. United States (1967) where SCOTUS examined the nature of right to privacy as applied to searches and seizures covered by 4th Amendment protections, holding that that defendant, Charles Katz, had a reasonable expectation of privacy when making a telephone call from a public phone booth and that evidence obtained by the FBI using an electronic eavesdropping device was inadmissible since they had not obtained a warrant and so was an illegal search and seizure. This is relevant since Katz was the test adopted by Smith v. Maryland in finding persons did NOT have such expectations when dialing a phone.
Secondly, the Court considered the recent SCOTUS ruling in United States v. Jones where it held that GPS tracking of a motor vehicle constitutes a search subject to 4th Amendment protections and thus requires a warrant.
Key Points of the Decision
The apparent conflict between the Smith, Miller and Jones rulings have met with various interpretations in lower courts where some magistrates have sought to constrain the use of such surveillance, and Smith has become a mainstay of arguments by the Justice Department and other agencies to justify mass surveillance, issues Granick discusses at length in her Just Security article and also an editorial she penned for Wired, New Ruling Shows the NSA Can’t Legally Justify Its Phone Spying Anymore, stating:
Relying on the Jones concurrences, the Eleventh Circuit concluded that under the “reasonable expectation of privacy” test, cell phone location data is also protected under the Fourth Amendment, since this data can reveal private matters such as “being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute”. The appellate judges also dismissed the argument used in Smith that people lose their right to data submitted to businesses, rejecting the idea that people know in any meaningful way that in using their cell phone they are sending their location information to a provider.
The appellate judges in Davis, by refusing to apply Smith and Miller to a case involving stored records, have taken a giant step toward undermining the legal justification propping up many of the government’s targeted and bulk metadata collection practices. The call detail records that the NSA gets under its Section 215 collection program — which provide information about phone numbers called and received and the duration of calls — include far more detailed data than the simple information at issue in Smith and are far more revealing of private conduct, social networks, and thought processes. This is especially true because the records are collected in bulk.
Lest you think the application of Third Party Doctrine to obtain massive amounts of metadata has been the exclusive domain of federal "three letter" agencies,
the exploding use of cell tower tracking,
red light camera and
license plate reader tracking data by local police departments and prosecutors has resulted in some bizarre perversions of judicial process including the
interstate transport of data by US Marshals to keep it out of the hands of defense attorneys and the ACLU. Hum. Go figure.
In rendering their decision, the Court noted:
While Jones is distinguishable from the case before us, it concerned location information obtained by a technology sufficiently similar to that furnished in the cell site location information to make it clearly relevant to our analysis. The present case, like Jones, brings to the fore the existence of two distinct views of the interests protected by the Fourth Amendment’s prohibition of unreasonable searches and seizures. The older of the two theories is the view that the Fourth Amendment protects the property rights of the people. This view is sometimes referred to as the “trespass” theory and “our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century.” Jones, 132 S. Ct. at 949 (collecting authorities). However, in the twentieth century, a second view gradually developed: that is, that the Fourth Amendment guarantee protects the privacy rights of the people without respect to whether the alleged “search” constituted a trespass against property rights. [ ... ]
Finally, in Katz v. United States, 389 U.S. 347 (1967), the majority of the Supreme Court accepted and relied upon the privacy theory to hold interception of a conversation unconstitutional even in the absence of a physical trespass. In Katz—on facts somewhat reminiscent of Goldman—the Court considered evidence obtained by FBI agents through a device attached to the exterior of a telephone booth but not penetrating the wall. As the government argued that there was no Fourth Amendment violation because there was no trespass, the Court squarely considered the dichotomy between the property and privacy protection theories. The Court held that such a warrantless interception did violate privacy interests protected by the Fourth Amendment. Indeed, it did so construing language from Silverman as already establishing “that the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements overheard without any ‘technical trespass under . . . local property law.’” Id. at 353 (quoting Silverman, at 511). Only one justice dissented in Katz and it became indisputable in 1967 that the privacy protection theory was indeed viable.
Therefore, it cannot be denied that the Fourth Amendment protection against unreasonable searches and seizures shields the people from the warrantless interception of electronic data or sound waves carrying communications. The next step of analysis, then, is to inquire whether that protection covers not only content, but also the transmission itself when it reveals information about the personal source of the transmission, specifically his location. The Supreme Court in Jones dealt with such an electronic seizure by the government and reached a conclusion instructive to us in the present controversy.
In other words, the Court concluded that:
• information is property and protected from unwarranted search and seizure
• because a call phone subscriber may use a phone in a private location (including inside a public phone booth if they still exist!) they have a reasonable expectation of privacy, so privacy protection applies even to information transmitted by wireless means
• that transmissions of information -- not limited to content -- such as metadata, which revels information about persons including (in the case) location, is protected from unwarranted seizure on the basis of the SCOTUS Jones decision.
The implication of this decision is quite simple and clear: if upheld, conceivably any metadata or transactional records that reveled information about persons covered by the 4th Amendment in a US jurisdiction would be protected and require a Court Warrant issued by a Judge or Magistrate to be obtained by a search and seizure.
Given the potential scope of such a precedent, and the fact it rests on SCOTUS rulings including Jones from the sitting SCOTUS court, it could prove to be a pivotal and landmark case whether upheld or not, and seems destined for SCOTUS.
Citations
For those inclined to review them, relevant citations would include (in reverse cascading and chronological order) :
United States v. Jones
Smith v. Maryland
United States v. Miller
Katz v. United States
Silverman v. United States
Goldman v. United States
Olmstead v. United States
~~~ Edit to correct typos and improve formatting & clarity 2014.06.16 CCT ~~~