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EveShabtoFirstPaper 7 - 01 May 2017 - Main.EveShabto
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| | | -- By EveShabto - 04 Mar 2017
Introduction | |
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< | Cellular phones have become a staple of the modern American’s life. As of January 2017, 95% of American adults owned a cell phone, and 77% owned smartphones. The Supreme Court has noted that cell phones have become “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Cell phones are “simultaneously offices and personal diaries” because they contain “the most intimate details of our lives: financial records, confidential business documents, medical records and private emails.” Aside from the content stored in cell phones, phones also generate location data: Cell Site location information (“CSLI”). | >
> | Cellular phones have become a staple of the modern American’s life. As of January 2017, 95% of American adults owned a cell phone, and 77% owned smartphones. The Supreme Court has noted that cell phones have become “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Cell phones are “simultaneously offices and personal diaries” because they contain “the most intimate details of our lives: financial records, confidential business documents, medical records and private emails.” Aside from the content stored in cell phones, phones also generate location data: Cell Site location information (“CSLI”).
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| | | CSLI Technology | |
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< | CSLI allows cell service providers to track and store massive amount of information about a user’s physical movements. CSLI is generally divided into two categories: historical data and real-time data. Historical data is location data that has accumulated over time and is stored by the cell service provider, while real-time data is current data that can be used to determine the current location of the cell phone. Although courts have generally held that law enforcement must obtain a warrant before gaining access to real-time CSLI, many courts maintain that historical cell site data is not afforded the same protection. But a brief delay in the disclosure of the data should not significantly diminish an individual’s privacy interest in the data. | >
> | CSLI allows cell service providers to track and store massive amount of information about a user’s physical movements. CSLI is generally divided into two categories: historical data and real-time data. Historical data is location data that has accumulated over time and is stored by the cell service provider, while real-time data is current data that can be used to determine the current location of the cell phone. Although courts have generally held that law enforcement must obtain a warrant before gaining access to real-time CSLI, many courts maintain that historical cell site data is not afforded the same protection. But a brief delay in the disclosure of the data should not significantly diminish an individual’s privacy interest in the data.
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| | | The Fourth Amendment and the Stored Communications Act | |
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< | The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and that “no Warrants shall issue, but upon probable cause.” A government search within the meaning of the Fourth Amendment violates “a subjective expectation of privacy that society recognizes as reasonable.” However, law enforcement can obtain historical CSLI without obtaining a warrant but instead with a court order under the Stored Communications Act (“SCA”) because many jurisdictions consider CSLI “non-content” information, like the address on an envelope. Under the SCA, obtaining non-content information does not require probable cause; only “specific and articulable facts” and “reasonable grounds to believe” the information sought will be “relevant and material” to an investigation. This standard is hardly a standard at all. The original SCA was designed as a statutory stand-in for uncertain Fourth Amendment protection. However, as long as courts considered CSLI to be non-content information, the SCA is entirely inadequate. This paper argues that Courts should make clear that cell phone users have a reasonable expectation of privacy in their historical cell site location information and the Fourth Amendment applies. | >
> | The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and that “no Warrants shall issue, but upon probable cause.” A government search within the meaning of the Fourth Amendment violates “a subjective expectation of privacy that society recognizes as reasonable.” However, law enforcement can obtain historical CSLI without obtaining a warrant but instead with a court order under the Stored Communications Act (“SCA”) because many jurisdictions consider CSLI “non-content” information, like the address on an envelope. Under the SCA, obtaining non-content information does not require probable cause; only “specific and articulable facts” and “reasonable grounds to believe” the information sought will be “relevant and material” to an investigation. This standard is hardly a standard at all. The original SCA was designed as a statutory stand-in for uncertain Fourth Amendment protection. However, as long as courts considered CSLI to be non-content information, the SCA is entirely inadequate. This paper argues that Courts should make clear that cell phone users have a reasonable expectation of privacy in their historical cell site location information and the Fourth Amendment applies.
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| | | Reasonable Expectation of Privacy in CSLI
In order for CSLI to possess Fourth Amendment protection, the traditional Katz two-prong test tells us that individuals must have (1) an actual, subjective expectation of privacy in their CSLI, and (2) society must be prepared to acknowledge that expectation as reasonable. Americans have a subjective expectation of privacy in the CSLI, and the Supreme Court has indicated that Americans have an objective expectation to be free from warrantless government surveillance. |
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