Last April, the revelation that iOS4 (an operating system for iPhones) regularly records and stores the geographic location of its owner in a hidden file attracted the attention of privacy advocates and unwitting users alike. Alasdair Allan and Pete Warden, Got an iPhone or 3G iPad? Apple is Recording Your Moves, O’Reilly Radar (Apr. 20, 2011), available at http://radar.oreilly.com/print/2011/04/applelocation-tracking.html. Smartphone location information (“SPLI”) is a combination of GPS and Wi-Fi data, and is so precise that it can paint an intimate portrait of a smartphone owner’s daily life. Yet, the government might be able to directly obtain SPLI without any Fourth Amendment impediments by piggybacking onto civil litigation or administrative proceeding discovery requests, subpoenas, and productions. That the government could have access to this information without a showing of probable cause may be, for some, more problematic than even the existence of such data. However, recent cases concerning GPS tracking and cell site location information (“CSLI”) suggest methods to prevent governmental access to stored SPLI, and ways in which the data may be used to an owner’s own advantage in litigation.

Cell Phone Location Information: A Primer

CSLI is created when a cell phone is turned on or used. When on, a cell phone searches for service from the nearest available tower, communicates with that tower (or sometimes several) and registers on the network, thereby creating a record of its location — all without affirmative action from the user. Similarly, when a cell phone customer makes a call, a record is made of what tower routed the call (the nearest one) and what “face” of the antenna (direction from which the call originated) received the transmission. The CSLI’s accuracy depends on the phone’s proximity to the service towers and the density of the towers. CSLI is more precise in urban areas where large populations require more service towers. But it is still not as accurate as GPS information. Cellular service providers maintain CSLI in the regular course of business and the government has used this information prospectively in criminal investigations (for example, to find a fugitive) or retrospectively at criminal trials (for example, to place a defendant near the scene of a crime).

Smartphones, and therefore SPLI, differ from cell phones in three ways. First, SPLI is comprised of Wi-Fi and GPS data, in addition to cell tower information. For example, smartphones utilize Wi-Fi hotspots and cell towers “to help [an] iPhone rapidly and accurately calculate its location when requested” to quickly find GPS satellites. Apple Press Info, Apple Q&A on Location Data (Apr. 27, 2011), available athttp://www.apple.com/ pr/library/2011/04/27Apple-Q-A-on-Location-Data.html (hereinafter “Apple Statement”). Second, the third-party with access to the SPLI is the smartphone manufacturer, not the cellular service provider. For example, Apple has explained that location data is sent to Apple “in an anonymous and encrypted form” by which Apple cannot “identify the source of [the] data.” Id. Apple’s privacy statement states that “[t]o provide location-based services on Apple products, Apple [and partners] may collect, use, and share precise location data, including the real-time geographic location of your Apple . . . device.” Apple, Apple Customer Privacy Policy (last visited Mar. 8, 2012), available at http://www.apple.com/privacy/. Third, smartphone users often have direct access to their own SPLI. For example, Google’s Android phone keeps location data in a limited sized cache on the device; Apple’s iPhone originally stored SPLI on the device indefinitely, as well as on any computer the smartphone has been synced with. Sebastian Anthony, Apple Patents iPhone Location Tracking, Ties Every Action with Your Real World Position, Extremetech.com (Apr. 26, 2011), available at http://www.extremetech.com/ mobile/84212-apple-patents-iphone-location-tracking-tiesevery-action-with-your-real-world-position.

GPS Surveillance Under Maynard and Jones

Although there is no case law analyzing Fourth Amendment implications of government access to SPLI, we can look to the law governing CSLI for guidance. Indeed, CSLI jurisprudence has been largely informed by GPS/Fourth Amendment case law, which is particularly apt since SPLI can consist of GPS data.

In United States v. Maynard, defendants Lawrence Maynard and Antoine Jones appealed their conviction on various drug charges. 615 F.3d 544 (D.C. Cir. 2010). Individually, Jones argued that the admission of evidence obtained by the government (by surreptitiously installing a GPS unit on his car in violation of the obtained warrant, i.e., installing it outside the geographical area approved and after the expiration date, and monitoring his movements for a month) was a reversible error because it violated his reasonable expectation of privacy under the Fourth Amendment. Id. at 555 (citing Katz v. United States, 389 U.S. 347, 360-361 (1967) (Harlan, J., concurring)). In response, the government argued that Jones had no expectation of privacy in the movements of his car as a matter of law. Id. at 555-556 (citing United States v. Knotts, 460 U.S. 276, 281 (1983) (holding that “a person travelling through public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”)). After observing that Knotts did not address prolonged surveillance, the D.C. Appeals Court held that Jones had a reasonable expectation of privacy over his movements in the course of a month because (i) they were not “actually exposed” to the public (the “likelihood that a stranger would observe all those movements is not just remote, it is essentially nil”); (ii) they were not “constructively exposed” by virtue of each discreet movement being in public view; and (iii) the intrusion of the GPS monitoring “exceed[ed] the intrusions occasioned by every police practice the Supreme Court has deemed [an unreasonable] search” including urine tests, luggage inspection, and the use of thermal imaging. Id. at 554-59. Accordingly, Jones’ conviction was reversed, while Maynard’s conviction was upheld. Id. at 568.

The government appealed the reversal, but the Supreme Court affirmed the Appeals Court in United States v. Jones, 132 S. Ct. 945 (2012). Although the majority focused on the physical intrusion of placing the GPS device (deeming it a trespass and “search” under the Fourth Amendment, which would require a valid warrant), the concurring opinion written by Justice Alito upheld the appeals court on the alternate ground that the installation and subsequent tracking of Jones’ vehicle by GPS violated reasonable expectation of privacy under Katz. Id. at 960-64. Of note, the concurrence faulted the majority for “ironically” using 18th-century tort law to deal with emerging technologies (id. at 957), highlighting the particular problem posed by long-term surveillance without physical trespass – an issue the majority specifically declined to address. Id. at 953. Because emerging technologies (such as smartphones) shape privacy expectations, the concurrence posited that the appropriate question was “whether the use of [a particular method of surveillance] involved a degree of intrusion that a reasonable person would not have anticipated.” Id. at 964.

Historical CSLI and Probable Cause

It is no surprise that government access to CSLI has sparked a great deal of Fourth Amendment debate. Similar to the GPS tracking in Jones, it can reveal an intimate picture of a subject’s life. Although most courts have held thatprospective or real-time governmental access to CSLI requires a showing of probable cause, there is debate over what showing the government must make when requesting historical CSLI. Susan Freiwald, Cell Phone Location Data and the Fourth Amendment: A Question of Law, Not Fact, 70 MARYLAND L. REV. 681, 694 (2011). Historical CSLI is classified as a stored record and is therefore subject to the Stored Communications Act (“SCA”), which allows governmental access so long as it “offers . . . reasonable grounds to believe that the contents of a wire or electronic communication . . . are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d) (emphasis added). The question then becomes, given such statutory authority, whether and when a request implicates Fourth Amendment privacy concerns. Even more confusing, few courts have directly addressed probable cause within the context of CSLI – some require the CSLI to be evidence of a crime, while others require only that the records will lead to evidence of a crime. In re: Application of the United States of Am. for an Order Authorizing the Use of a Pen Register and Trap and Trace Device, 727 F. Supp. 2d 571, 581 (W.D. Tex. 2010); In re: Application of the United States of Am. for an Order Authorizing the Release of Prospective Cell Site Information, 407 F. Supp. 2d 134, 135-36 (D.D.C. 2006). The only Court of Appeals case to deal directly with the government’s burden when requesting historical CSLI did little to clarify the issue, holding that a magistrate judge may require either a showing of probable cause or reasonable grounds pursuant to the SCA. In re: the Application of the United States of Am. for an Order Directing a Provider of Elec. Commc’m Serv. to Disclose Records to the Gov’t, 620 F.3d 304, 312-13 (3d Cir. 2010). Federal magistrate and district court judges have been developing law in the trenches as a result and there have been some particularly interesting developments in New York.

Application in the New York Courts

Jurists have seized on the Maynard court’s reasoning that prolonged periods of CSLI capture are subject to Fourth Amendment privacy concerns because such records show “far more than the individual movements it comprises. The difference is not one of degree but of kind, for no single journey reveals the habits and patterns that mark the distinction between a day in the life and a way of life, nor the departure from a routine that, like the dog that did not bark in the Sherlock Holmes story, may reveal even more.” 615 F.3d at 562. Eastern District of New York Magistrate Judge James Orenstein became the first judge to reevaluate the constitutionality of historical CSLI requests in light of Maynard when he denied an application for fifty-eight-days’ worth of historical CSLI made by the government pursuant to the SCA. In re: an Application of the United States of Am. for an Order Authorizing the Release of Historical Cell-Site Information, 736 F. Supp. 2d 578 (E.D.N.Y. 2010). Magistrate Orenstein held that the SCA’s statutory authority (requiring only reasonable grounds) was insufficient to overcome the Fourth Amendment’s prohibition against unreasonable search and seizure — and prolonged, warrant less location tracking via historical CSLI was just such a search. Id. at 580-81. He added that even if cell phone users are aware that they are subjecting themselves to location tracking, a reasonable expectation of privacy in long-term movements is maintained and, in fact, users expect that “such tracking can and should be controlled.” Id. at 592-93. “Simply put, there is no reason to think that the advance of technology brings with it an expectation that privacy is lost; rather, I assume that it serves only to increase awareness of the importance of privacy and to whet the appetite for ways to manage it.” Id. at 594.

The government appealed that decision to District Judge Roslynn R. Mauskopf (the district judge then serving on miscellaneous duty), who reversed and remanded, but Magistrate Orenstein again denied the government’s application. In re: an Application of the United States of Am. for an Order Authorizing the Release of Historical Cell-Site Information, 10-MC-897, 2010 U.S. Dist. LEXIS 136053, at **13-14 (E.D.N.Y. 2010).

The government then submitted an identical application to District Court Judge Nicholas Garaufis, who considered the application de novo and also denied the government’s application on substantially the same grounds articulated by Magistrate Orenstein. In Re: an Application of the United States of Am. for an Order Authorizing the Release of Historical Cell-Site Information, 809 F. Supp. 2d 113 (E.D.N.Y. 2011). Because cell phone users voluntarily convey their signal to service-provider towers (which undermines any expectation of privacy), the court observed that an exception to the third-party disclosure doctrine would be needed to retain an expectation of privacy in CSLI under the Fourth Amendment. Id. at 122. Judge Garaufis was persuaded that an exception should be made for cumulative CSLI because service providers act as intermediaries (they only have access to the data incident to service) and because access to “cumulative cell-site-location records would permit governmental intrusion into information which is objectively recognized as highly private.” Id. at 122-25. Judge Garaufis rejected “[t]he fiction that the vast majority of the American population consents to warrantless Government access to the records of a significant share of their movements by ‘choosing’ to carry a cell phone” and held that to grant the government’s request for 113 days of historical CSLI on a lower-than-probable-cause standard would be inconsistent with the Fourth Amendment. Id. at 127. Judge Garaufis closed his opinion by discussing the need to promptly assess the Fourth Amendment implications created by new technology lest we “put[] our country far closer to Oceania than our Constitution permits.” Id

Indeed, even the Supreme Court of the United States has recognized that emerging technologies are presenting new challenges to analysis of Fourth Amendment jurisprudence and individual rights to privacy. Less than two years ago, in City of Ontario, California v. Quon, the Supreme Court declined to issue a “broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment” (instead limiting its holding to messages on public employees’ employer-issued pagers) because of the “difficulty predicting how . . . privacy expectations will be shaped by [emerging technology] or the degree to which society will be prepared to recognize those expectations as reasonable.” 130 S. Ct. 2619, 2630 (2010). The Supreme Court did note, however, that “cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. That might strengthen the case for an expectation of privacy.” Id. This observation, as evidenced by the above discussion of Magistrate Orenstein and Judge Garaufis’s decisions, is now playing out at the districtcourt level.

Smartphones and the Fourth Amendment

Although smartphone manufacturers claim that the SPLI they collect is anonymous, that may not always be the case and, in any event, some smartphone software applications collect similar data for various purposes, which circles back to the question of whether a government request for SPLI would raise Fourth Amendment concerns. Given recent CSLI case law, it arguably would. First, just as cell phone users maintain a reasonable expectation of privacy even though they could stop registering their phones with cellular towers by switching the devices off, so, too, could smartphone users cease recording their location with third parties by opting out of location-tracking software services. Second, Judge Garaufis’s rejection of the notion that simply carrying a phone is tacit consent to warrantless access to CSLI by the government bodes well for smartphone users. A user making optimal use of a smartphone (for example, by periodically, or even frequently, checking into Facebook or Foursquare) does not necessarily mean he has consented to warrantless access to all his location records. Third, as discussed above, requests for long-term CSLI merit Fourth Amendment scrutiny because of the intimate and detailed pictures the records can paint. SPLI is more precise and paints an even more detailed picture of the user’s movements because it is comprised of GPS and Wi-Fi data. Accordingly, there is a strong argument to be made that the government should face the same Fourth Amendment restrictions when requesting long-term SPLI.

These restrictions, however, would seemingly only apply when the government is requesting records from the smartphone manufacturer. Recall that a user also retains SPLI on his or her smartphone and, potentially, computer. Although the law is still developing, some states haveallowed warrantless searches of cell phones, including text messages, when an individual has been arrested. See, e.g., People v. Diaz, 51 Cal. 4th 84, 89 (Cal. Ct. App. Jan. 3, 2011). It may be only a short jump from permitting the review of texts and emails to accessing any file on a smartphone. One sticking point may be the significant effort needed to find these location files. However, some police departments are already equipped with data extraction devices, which can make a copy of a cell phone’s data for later analysis. Ki Mae Heussner, Michigan Police use Device to Download Cellphone Data; ACLU Objects, ABCNews.com (Apr. 21, 2011), available at http://abcnews. go.com/Technology/michigan-police-cellphone-data-extractiondevices-aclu-objects/story?id=13428178.

During an investigation, it is likely that the government would prefer an ex parte application for SPLI rather than directing a request for SPLI to the subject of the investigation. And in such cases, recent CSLI case law would be an invaluable tool for any litigant wishing to suppress SPLI obtained without a warrant. But CSLI case law could also provide a strategic advantage in cases where a smartphone itself has been seized without a warrant or probable cause. In fact, given that access to long-term SPLI can be such an invasion of privacy, CSLI-based arguments can give defendants a way to challenge the validity of an over-expansive search. Ultimately, smartphone users should be cognizant of all the information their devices contain (or download onto their computers) and should, when possible, consult with their counsel about the authorities’ need for a warrant before turning over their smartphones.

Non-Governmental Access to Location Information

As mentioned above, the SCA allows a provider to divulge record information to anyone other than a governmentalentity. Most providers, however, require at least a subpoena or a court order before releasing records, even to the cell phone account holder. Still, with comparatively liberal civil litigation discovery rules, it may be easier for a private entity to access long-term historical CSLI than the government. This could create an incentive for the government to encourage civil litigation during its investigation – such as a qui tam or whistle-blower action – in order to piggyback onto civil discovery or even an agency subpoena. Given that cellular service providers are coy with the public about the existence of CSLI records and given that the SCA permits, but does not mandate, the release of such records, it is likely that providers might still require a court order – but that approach still circumvents the “problem” of probable cause. Likewise, cooperation may be the easiest avenue for the government to gain access to SPLI, since a forensic copy of the device or the computer to which it backs up could easily be requested in civil discovery or ordered by the court. Since the government could access information produced in civil discovery in order to build a case it otherwise might not have the ability to, civil litigants should take precautions to protect their CSLI and SPLI. This could mean vigorously fighting any thirdparty discovery request or agency subpoena or producing such information subject to a confidentiality agreement that specifically prohibits sharing discovery materials with nonparties, third-parties, or government entities.

Both CSLI and SPLI are more than just tools for the government, however; they can also be tools for criminal defendants by providing alibis or introducing reasonable doubt. Ironically, individuals under criminal investigation are in the toughest spot when it comes to accessing their own CSLI. If the government does not request the records, and if there is no matter pending before the court, a potential criminal defendant effectively has no ready access to his or her historical CSLI. Although untested, the subject or target of a governmental investigation may have some luck with state law that allows pre-suit discovery. In New York, for example, CPLR 3102(c) allows a court to grant a petition for pre-action discovery if a petitioner demonstrates that he or she has a meritorious cause of action and the information is material and necessary tothe actionable wrong. Still, it seems there would have to be some basis for civil litigation in order to commence such a proceeding. In cases where the subject or target of an investigation is certain that CSLI would provide exculpatory evidence, he or she should consider whether commencing litigation could provide access to his or her CSLI records. As discussed in the previous paragraph, if civil litigation has commenced, potential criminal defendants should consider, in consultation with counsel, producing data only after entering into a suitable confidentiality agreement or protective order.

Criminal defendants and targets of governmental investigations may have better luck obtaining SPLI from their smartphones. Owners could affirmatively and preemptively access such data at home, especially if they have an iPhone, which retains some location data indefinitely and may have also left a back-up copy on their computer. Home-accessed SPLI could be an especially powerful and cost-effective tool for individuals who are simply under investigation, providing exculpatory evidence early during an investigation. Of course, coordination with counsel and with forensic computer specialists to ensure that such information is properly preserved, collected and maintained is advisable. This will not only aid in the avoidance or defense of spoliation charges, but will help to preserve evidence and chain-ofcustody information for authentication and admissibility down the road.

Conclusion

Litigants (civil and criminal) are well-advised to stay abreast of new developments in technology – such as the revelation that SPLI exists and is pervasively stored on consumer electronics devices. Such emerging technologies can be harnessed to help defend or prosecute a litigation. Careful consultation with counsel and computer forensic experts may assist potential and actual litigants in guarding against the unfavorable use of such data, and to realize the beneficial use of new forms of evidence in court.