Texting the Government Your Location
Anyone who has looked at their phone bill can see a list of all the numbers dialed and the duration of each call. Under long standing Fourth Amendment precedent, none of these dialed numbers carry constitutional protection and the police are free to acquire the information from the phone company without probable cause or a warrant. The reason is something called the “third party doctrine.” In Smith v. Maryland, 422 U.S. 735 (1979), the Court relied on this doctrine and found that a person has no privacy protection to numbers dialed on her phone because she voluntarily conveyed this information to the phone company in the normal course of making a call.
More recently, courts have struggled with whether the third party doctrine applies to historical cell phone location data. We’re talking about the data you transmit to cell phone providers when your phone is on. To facilitate calls and send/receive texts, your cell phone periodically and automatically sends a signal to the nearest cell phone tower. Cell phone providers like Verizon and AT&T maintain thousands of these towers across the United States that receive your signals. As you move, the signal changes from tower to tower. Cell phone providers record this data as part of their normal course in providing cell phone service, not unlike the phone numbers you dial. Police thereafter can ask phone companies to hand over this data for a set period of time. The issue is whether this data falls under Fourth Amendment protection and thus requires probable cause and warrant. The Circuits are split. In United States v. Graham, No 12-4659 (4th Cir. August 5, 2015), the Fourth Circuit recently ruled that this data should be constitutionally protected whereas the Fifth (In re Application of United States for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013) and 11th Circuits (United States v. Davis, 785 F.3d 498 (11th Cir 2015) have ruled the other way.
A key point of contention is whether cell phone location data should be treated liked dialed phone numbers when it comes to applying the third party doctrine. Those courts that say “yes” draw similarities between the two scenarios. For example the 5th Circuit finds that,“[a] cell service subscriber, like a telephone user, understands that his cell phone must send a signal to a nearby cell tower in order to wirelessly connect his call.” In re Application of the United States for Historical Cell Site Data, 724 F.3d at 613. Those finding constitutional protection focus, instead, on the difference between these two scenarios and the fact that location data is automatically generated when the phone is turned on. The 4th Circuit concludes that “a cell phone user cannot be said to ‘voluntary convey’ to her service provider information but was instead generated without user’s involvement.” Graham, No 12-4659 at *48.
How one comes out on this issue depends on how one understands the term “convey.” Webster defines the term as “to take or carry (someone or something) from one place to another” or “to make (something) known to someone.” This definition assumes that an individual has something to pass along. This easily applies to dialed numbers. You manually touch the numbers on your phone and thus pass along this information to your phone provider. The history of the third party doctrine supports this active transference. The roots of the doctrine trace back to the use of government informants. (e.g. United States v. Hoffa, 385 U.S. 293 (1966).The government has always had the unfettered ability to illicit incriminating statements from a suspect without Fourth Amendment scrutiny. The reason is because a suspect voluntary conveys (i.e. transfers) this information to the third party.
At first blush, cell phone location data does not readily fit into this model. Users are not texting or otherwise manually entering their location. To be sure, most probably have no idea as to the location of the nearest cell tower. How then can they convey anything to trigger the third party doctrine? As the Fourth Circuit puts it, “[c]ell phone users do not actively or knowingly communicate or "trade" their location information to their service providers as part of the consideration for the services provided.” Graham, No 12-4659 at *50.
On the other hand, one cannot say that users don’t generally understand that their location is critical to making or receiving calls. We’ve all been in the situation where we are walking around trying to find a spot with good reception. Id. at *116 (J. Motz, dissenting). We may not know the precise cell tower that is nearest to us but we do know generally that our approximate location is being transmitted to the provider. And while we don’t manually enter this information, we do turn on our phones. This action—albeit not as involved as texting or dialing a number—nevertheless stands as a voluntary act.
The third party doctrine does not require a certain level of specificity in the information being disclosed. Take again the undercover informant scenario. It wouldn’t matter that the suspect doesn’t know the full extent of what she was disclosing. Perhaps she doesn’t realize that her statement might implicate her in other crimes. This wouldn’t be relevant to an application of the third party doctrine. The same applies to the cell phone users. It doesn’t matter that a user may only have a general sense of the location being conveyed without knowledge of a specific cell tower. The amount of information disclosed is equally irrelevant. The 4th Circuit was concerned that the police in that case collected historical location data for over 220 days. Id. at *33-34. But again under a straightforward application of the third party doctrine, all that matters is that the information was voluntary disclosed
Furthermore, the doctrine doesn’t mandate a particular type of voluntary act. It doesn’t matter how involved (or not involved) the relevant action happens to be. All that matters is that it was voluntary or otherwise not coerced. Whether it is turning on a cell phone, dialing a number, sending a text, talking to an informant, all of these would equally constitute voluntary acts. Indeed, trying to parse out how elaborate the act must be would lead to a host of problems on where to draw the line.
This conclusion may be worrying to some. The cases of disclosing information to an undercover informant or dialing a particular phone number seem easier to avoid. If you are really worried about making incriminating statements, don’t tell anyone. Likewise, if you don’t want the government obtaining the number you dialed, meet the individual in person or tell them to use a burner phone. The point here is that you can find alternatives to putting yourself at risk. It isn’t that easy with location data. Cell phones are ubiquitous and we take them everywhere with us. As long as you have the phone turned on, you continually expose your location to the potential reach of the government without Fourth Amendment protection. This is a valid concern. It is no accident, in fact, that Justice Sotomayor (in a concurrence on a Fourth Amendment case involving GPS surveillance) questioned the very viability of the third party doctrine in today’s technology dominated world:
This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers.
United States v. Jones, 132 S.Ct. 945, 957 (2012).She makes a good case for chucking the doctrine altogether. But for now, the doctrine remains a central hurdle to Fourth Amendment protection. And we may want to keep it that way given the prevalence of undercover police work. In any case, this isn’t an all or nothing proposition. Perhaps, like the Fourth Circuit, the Supreme Court will find that the doctrine applies to phone numbers dialed but not historical cell phone location data. But in doing so, it will have to rely on some finely-parsed analysis that explains why only the former stands as a voluntary disclosure.