Government Surveillance and Fourth Amendment Implications
Stored Communications Act
Congress enacted the Stored Communications Act (SCA) as Title II of the Electronic Communications Privacy Act (ECPA).[1]It regulates when an electronic communication service provider may disclose a customer’s e-mails, text messages, tweets or other electronic communications.[2]It usually prohibits a service provider from revealing the contents of any communication to any person other than the addressee or intended recipient, except as authorized by applicable law.[3]
This law authorizes the government to obtain cell service providers’ records under certain circumstances.[4]The Stored Communications Act was added to the United States code in 1986, and has been amended several times since then.[5]The Act allows electronic communication providers to provide the government with contents of a wire or electronic communication with a valid warrant.[6]Thereafter, the electronic communications service is required to provide the government officials with the name, address, telephone connection records, length of service, telephone number, and payment information of the named defendant.[7]The government entity receiving this information need not provide the defendant with this information.[8]
Third-Party Doctrine
The third-party doctrine is a legal proposition that permits the government to access a vast amount of information about individuals through service providers.[1]
U.S. v. Carpenter
One of the most recent effects of the Stored Communication Act and cell-site location information on the Fourth Amendment are in U.S. v. Carpenter.[1]In this case, now before the Supreme Court of the United States, the main issue is whether the government can conduct a search for Fourth Amendment purposes when it obtains business records from a defendant’s wireless carriers for cell phone service, containing cell tower locational data.[2]Timothy Carpenter and co-defendant Timothy Sanders were convicted of nine armed robberies.[3]At trial, the government’s evidence included business records from the defendants’ wireless carriers showing that they used their phones within a half-mile to two miles of the locations where certain robberies occurred.[4]The government was able to retrieve this evidence by obtaining an order from the magistrate pursuant to the Stored Communications Act.[5]Under the Act, the government may require electronic communication services to disclose certain communication records when “specific and articulable facts show[] 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.”[6]The court used the two-part Katztest in this investigation to determine whether the retrieval of the defendants’ cellular data was considered a search under the Fourth Amendment.[7]This two-part test looks at whether (1) the defendant “exhibited an actual (subjective) expectation of privacy, and (2) whether this expectation was “one that society is prepared to recognize as reasonable.[8]If both of these elements are met, the investigation will constitute a search under the Fourth Amendment.[9]
In arriving at its conclusion, the court made a distinction with personal communications noting that although the content of personal communications is private, the information necessary to get those from point A to point B is not.[10]The Sixth Circuit also ruled in favor of the government, holding that while the Fourth Amendment “protects the content of the modern-day letter,” courts have not yet “extended those protections to the internet analogue to envelope markings, namely the metadata used to route internet communications, like sender and recipient addresses on email, or IP addresses.”[11]
Lawyers for Carpenter moved to suppress the cell-site evidence, arguing that the “reasonable grounds” standard necessary for the information under the federal law was too low of a bar.[12]Instead, they argued that the Fourth Amendment required the government to obtain a search warrant pursuant to a higher standard of “probable cause” before obtaining the data.[13]On appeal Carpenter’s lawyers also argue that “[a]llowing law enforcement to obtain such records free and clear of any Fourth Amendment restrictions would dramatically shrink the amount of privacy that people enjoyed from the time of the Framing through the dawn of the digital age.”[14]
Cell-site Simulators
Cell-site simulators impersonate cell phone towers, so cell phones can recognize the device as the strongest cell tower in the area and connect with them.[1]The simulator then identifies that cell phones using its unique International Mobile Subscriber Identity (IMSI).[2]Law enforcement agencies use these devices in vehicles as well as in planes.[3]The issue with the cell-site simulators from airplanes are that is that they cover such a wide geographic range, that when deployed over populated areas, phones with no connection to criminal activity are also surveilled.[4]
[A]bsent proper oversight and safeguards, the domestic use of cell-site simulators may well infringe upon the constitutional rights of citizens to be free from unreasonable searches and seizures”.[5]Because a lot of this technology is used overseas in the military, the Federal Bureau of Investigation (FBI) assists the sta. Part of the conditions for being able to sell cell-site stimulators to state and local law enforcement agencies are that the manufacturers must first notify the FBI.[6]And the agencies must sign a non-disclosure agreement with the FBI that expressly prohibits them from publicly disclosing their use of this technology, even in prosecutions where the technology was at issue.[7]Back in 2015, federal law enforcement entities could obtain a court’s authorization to use cell-site simulators by meeting a standard that was less than probable cause.[8]Until this time, the Department of Homeland Security (DHS) and the Department of Justice (DOJ) had different policies and procedures governing their use of cell-site stimulators.[9]They also were not always obtaining a search warrant to deploy the devices.[10]Now, their current policies require a warrant supported by probable cause.[11]
Currently, state laws vary as to what court authorization is necessary to deploy cell-site stimulators.[12]In California, Illinois, Utah, Virginia, and Washington, law enforcement agencies are required to obtain a warrant or order based on probable cause before using cell-site stimulators.[13]However, in many other states, law enforcement agencies only need to meet a “relevance-based standard” to use cell-site stimulators, which is lower than the standard of probable cause.[14]
Questions:
- In theU.S. v. Carpenter case, Justice Gorsuch suggested that the case should be decided on trespass grounds instead of taking a privacy-based approach. Do you agree?
- What are some of the Fourth Amendment violations that could arise from the cell-site simulators that are specifically on airplanes?
- Prosecutors have accepted plea deals to hide their use of cell-site simulators and have even dropped cases to avoid revealing information about their use of technology. What other ethical concerns do you see possibly stemming from the use of cell-site simulators?
- The Electronic Frontier Foundation as well as others, have argued that it is time for the Supreme Court to revisit the third-party doctrine because it is outdated. One of the main challenges that will present itself in the Carpenter case is trying to figure out how to reset the parameters of the third-party doctrine for this current digital age, or determine whether the third-party doctrine should be extinguished altogether. What are your thoughts?
Stored Communications Act
[1]18 U.S.C. §§2701-2712 (2017).
[2]Id.
[3]18 U.S.C. §§2702(a)(3)-2703.
[4]https://www.cnn.com/2017/11/29/politics/supreme-court-fourth-amendment-case/index.html
[5]18 U.S.C. §2703 (2017).
[6]Id.
[7]18 U.S.C. §2703
[8]18 U.S.C. §2703
Third Party Doctrine
[1] Richard M. Thompson. The Fourth Amendment Third-Party Doctrine.2014.
U.S. v. Carpenter
[1]U.S. v. Carpenter, 819 F.3d 880 (6th Cir. 2016).
[2]Id. at 884.
[3]Id.
[4]Id.
[5]Id.
[6]Carpenter, 819 F.3d at 884 (citing 18 U.S.C. §2703(d)).
[7]Carpenter, 819 F.3d at 886 (citing Katz v. United States, 389 U.S. 347 (1967).
[8]Carpenter, 819 F.3d at 886 (citing Katz v. United States, 389 U.S. 347 (1967).
[9]Id. at 886.
[10]Id.
[11]Ariane de Vogue, Supreme Court takes on Major Fourth Amendment case, (Nov. 29, 2017), https://www.cnn.com/2017/11/29/politics/supreme-court-fourth-amendment-case/index.html.
[12]Vogue, supra at 76.
[13]Vogue, supra at 76.
[14]Vogue, supra at 76.
Cell-site Simulators
[1] U.S. Dep’t of Justice, Department of Justice Policy Guidance: Use of Cell-Site Stimulator Technology at 2 [hereinafter DOJ Cell Site Policy], http://www.justice.gov/opa/file/767321/download(discussing how cell-site simulators function).
[2] DOJ Cell Site Policy, supra note 80, at 2.
[3] See, e.g., Devlin Barrett, Americans’ Cellphones Targeted in Secret U.S. Spy Program, WALL ST. J., Nov. 13, 2014, available at http://www.wsj.com/articles/americans-cellphones-targeted-in-secret-u-s-spy-program– 1415917533; Kim Zetter, The Feds Are Now Using ‘Stingrays’ in Planes to Spy on Our Phone Calls, WIRED (Nov. 14, 2014, 2:14 PM), http://www.wired.com/2014/11/feds-motherfng-stingrays-motherfng-planes/.
[4]Committee Report, p. 10.
[5]Committee Staff Report Page 2
[6]Committee Staff Report Page 3
[7] Briefing by Fed. Bureau of Investigation to H. Comm. on Oversight & Gov’t Reform staff (Feb. 11, 2015); see also Letter from Ernest Reith, Acting Assistant Dir., Operational Tech. Div., Fed. Bureau of Investigation, to Frederick H. Bealefeld, III, Police Comm’r, Baltimore Police Dep’t, et al. (July 13, 2011); Pell & Soghoian, supra note 3, at 38.
[8]Committee, p. 4
[9]Committee, p. 4
[10]Committee, p.4
[11]Committee, p.5.
[12]Committee, p.5.
[13]Committee, p.5.
[14]Committee, p.5.
Criminal Law in the Virtual Context 
As stated in the post, cell-site simulators can have major Fourth Amendment concerns, especially when being used on an airplane. An airplane can travel so quickly and cover so much ground that a vast amount of cell phones can be surveilled so easily, without the individuals having any idea of whats happening. I would assume that almost all of the people being surveilled at any given time have nothing to do with the investigation that warranted the use of the cell-site simulators. Just by the cell phones of unassociated individuals being monitored, it could be argued that this constitutes an unreasonable search. If the data obtained from their phone is stored somewhere, it could also be argued that this constitutes an unreasonable seizure of their data.
Because there are such strong Fourth Amendment concerns with cell-site simulators, because these devices can reach such a large population so quickly, and because they are so invasive, law enforcement should be required to have at least probable cause in order to use them. Additionally, it’s pretty horrifying that local law enforcement have had to sign non-disclosures regarding the use of cell-site simulators. By doing this, not only are the rights of the individual being violated, but the entire criminal process is being affected by prosecutors having to drop and settle cases.
Gorsuch’s suggestion of trespass analysis as opposed to privacy-based analysis is quite intriguing. I think there is something to be said for these kinds of intrusions being trespasses as opposed to strict privacy issues. Because the cell-site simulators act in a way that is similar to a cell reception tower, perhaps using the cell-site simulators is more like intersecting or entering a cell phone’s reception in order to get information as opposed to simply listening in. However, I don’t think this approach can be taken in a vacuum. More analysis would be necessary on how much privacy we can expect from our cell phones and at what point that right disappears.
Law enforcement should not be permitted to obtain information from providers without a warrant and probable cause. The standard for privacy of “reasonable expectation” in my opinion is easily met because the average person would expect that a cell phone which they contract to own with a company could not be used by police to track their movements without consent or a warrant. I agree with Justice Gorsuch that the argument supporting the third party doctrine is weak. If the police would violate the 4th Amendment if they obtained the information directly then from a third party should also be a violation. However, I do not think that trespass would be a better approach because personal information is a privacy issue.
1. The Ars reading assigned for this topic discussed this suggestion, including the government lawyer’s disagreement and assertion that the law has never treated data about a person as that person’s property. [1]. I would agree that these implications for treating this as a trespass issue are troubling, though I’d be interested to read if there are any amicus briefs that advocate for the position suggested by Gorsuch, such that I could understand it better.
2. As mentioned, cell-site simulator use on an airplane could provide location information on a great number of people at once. Even if the court were to decide on a standard more relaxed than probable cause for cell-site simulator use, it’s hard to imagine a situation where law enforcement could claim probable cause for an entire neighborhood.
3. I don’t like the implications of that at all, but at the same time I could understand a prosecutor making tactical decisions in case so as to best conceal the identity of an informant, so maybe it isn’t so different… but then again, the idea of having to sign an NDA with the Feds that ties a prosecutors hands seems troubling, both ethically and from a state vs. federal perspective.
4. I agree with the EFF and Sotomayor’s Jones concurrence – that the third-party doctrine is poorly suited for the digital age. I don’t think anyone could have envisioned how much information technology would allow/require us to give to third party businesses, and I don’t believe the release of such information in exchange for the use of a device necessarily implies consent for such information to be released publicly. I think public outcry over the recent scandal of Facebook selling of vast amounts of user’s information to the highest bidders should itself serve as evidence toward the second prong of the Katz test – that the expectation of privacy is “one that society is prepared to recognize as reasonable.”
[1] https://arstechnica.com/tech-policy/2017/11/justices-hear-case-that-could-reshape-location-privacy-in-the-cellular-age/
The use of cell site simulators clearly implicates the Fourth Amendment since it constitutes a search of people’s personal information without a warrant or any probable cause. Any leeway granted by the third party doctrine is based on logic that no longer seems sound in today’s interconnected digital age. I personally don’t find the analogy of cell phone metadata being akin to the information on an envelope to be very convincing. The address information on an envelope does not allow a person to know the sender or recipient’s location at any given time. People should have an expectation of privacy as to their whereabouts, and the government obtaining that information using a standard so far below probable cause undermines the principles that the Fourth Amendment was built upon.
The third party doctrine certainly needs to be revisited. It makes it much too easy for the government to obtain information that people expect to remain private. The reasoning behind the third party doctrine has allowed for a more lenient standard for disclosure in the Stored Communications Act, which I feel should be further amended to reflect society’s modern day reliance on digital storage of information. The disclosure section of the SCA was supposed to be an exception to legislation in which the main intent was to protect the privacy of digital users. Language requiring law enforcement to obtain information by way of a “warrant” implies an intent to restrict government reach into citizens’ private data.
(1) In the U.S. v. Carpenter case, Justice Gorsuch suggested that the case should be decided on trespass grounds instead of taking a privacy-based approach. Do you agree?
I think Justice Gorsuch’s concept of trespass is interesting in this context. I have argued previously that I believe we have a property right in our data held by third parties that the law has currently failed to articulate. While I understand this data is necessarily held by the third parties for the purposes of facilitating our usage of cell phones and related apps, I also think that that we must have some protection of this data. Essentially, I think these entities are functionally holding this data in “constructive trust” and that, while they have the right to use it for our benefit, we still have a property interest in the data such that its search or seizure would require a warrant. I think the Smith v. Maryland case was wrongly decided because I think the average consumer of banking services does not assume that by using banking services they allow disclosure to law enforcement at a lower standard than probable cause. While I appreciate the reasoning of the third-party doctrine, I think it is a perfect example of a slippery slope that has come to fruition. The government has benefitted from lackadaisical enforcement of the warrant requirement in this context for much too long.
(2) What are some of the Fourth Amendment violations that could arise from the cell-site simulators that are specifically on airplanes?
I think the most obvious issue is that individuals who were not targeted by the warrant have a risk of their data being intercepted – although this is likely to happen with ground based interceptors as well. The real issue is that most of the individuals who might have legal standing are unaware of their data being intercepted. Thus, it seems this issue is likely to continue. Further, I assumed this technology would become an issue when I first heard about it and I believe the article regarding the use of the devices by non-United States actors in D.C. is a perfect example of how risky they are.
(3) Prosecutors have accepted plea deals to hide their use of cell-site simulators and have even dropped cases to avoid revealing information about their use of technology. What other ethical concerns do you see possibly stemming from the use of cell-site simulators?
I think there are many ethical considerations because many peoples privacy rights are being infrienged due to the use of this technology. However, as I discussed above I think it will be challenging to prevent their usage because the interceptors usage is often not disclosed to the public or individuals who might have standing to seek damages or injunctive relief.
(4) The Electronic Frontier Foundation as well as others, have argued that it is time for the Supreme Court to revisit the third-party doctrine because it is outdated. One of the main challenges that will present itself in the Carpenter case is trying to figure out how to reset the parameters of the third-party doctrine for this current digital age, or determine whether the third-party doctrine should be extinguished altogether. What are your thoughts?
I think the third-party doctrine was already a stretch of constitutional limits on 4th amendment requirements, even when deciding Smith v. Maryland. While I appreciate the argument I think disclosure to a third party does not negate the expectation of privacy. When disclosing personal information to a third party I think the third party holds that information in constructive trust for the benefit of the underlying discloser. I think this doctrine would be beneficial in both this context and the context of the distribution of intimate pictures. Therefore, by implementing a standing constructive trust I think the law would kill two bird with one stone.
The Electronic Frontier Foundation as well as others, have argued that it is time for the Supreme Court to revisit the third-party doctrine because it is outdated. One of the main challenges that will present itself in the Carpenter case is trying to figure out how to reset the parameters of the third-party doctrine for this current digital age, or determine whether the third-party doctrine should be extinguished altogether. What are your thoughts?
I believe that while people have the right to privacy in certain circumstances, the government should have the right to go through one’s personal information on a phone when it pertains to a criminal investigation. I cannot see a rationale why a person should be able to withhold data on their phone from the police when a possible criminal act was made. In order to balance out the fact of such an intrusive behavior, I believe that the police should be held to a strict duty not to disclose any information that does not pertain to the case in order to maintain the perpetrators privacy as much as possible. There are many apps, websites, and devices that constantly collect data on people which are very useful for criminal investigations. Restricting this information to law officials does not seem like the best way to ensure that we live in a just and fair society.
1. No because if the case is restricted to a trespass ground then the goalpost is changed, and the government gains the ability to circumvent Mr. Carpenter’s Fourth Amendment protection against unlawful search and seizure. This is very similar to the United States v. Jones case where the decision was based mostly on trespass grounds, however Justice Sotomayor pointed out that the evolution of technology makes the need for a solid development of Katz when it comes to electronics imperative.
2. The cell-site simulators will pick up information from innocent people without a warrant or any sort of probable cause because it is a machine designed to connect with phones by tricking them into thinking it is the strongest cell tower in the area. Today, phones carry large amounts of information that could be used by the government in prosecutions. The cell-site simulators subject people to unlawful searches and seizures in violation of their Fourth Amendment rights.
3. The fact that agencies must sign non-disclosure agreements with the FBI to use the technology is a huge ethical concern. The federal government has been caught in recent days monitoring peaceful individuals, there was a report of how the DOJ monitored the BLM leaders even scanning their social media. The cell-site simulators could be used in similar ways to obtain information to harm the cause illegally without having to reveal how that information was obtained.
4. The third-party doctrine should be done away with. It allows the government to ask ISP for information on their clients without disclosing to the person being investigated, the corporations have a huge interest in cooperating with the government especially if they know that the information will not get out. The amount of information that is now contained in our electronics is large and the days are gone where all the phone company provided was phone numbers. The information available on our devices today is vast and can paint a clear picture of who we are.
I agree with Justice Gorsuch and the late Justice Scalia, that it’s time for a an update to Katz. Katz originally was decided to move away from trespass provide greater protection away from the home and persons. With newer technology and the popular third party doctrine it seems that these privacy concerns are being watered down.
Personally I think there are different levels of privacy which the third party doctrine recognized in Smith fails to address. Just because I share my financial information with my bank and my location with my cell phone provider doesn’t mean I want have an expectation that the public or the government has access to this information.
Jutice Sotomayor characterized this sentiment best when she stated “most Americans, I still think, want to avoid Big Brother.” The cringeworthy facts of Carpenter are these Americans worst fear. The fact that Carpenter was tracked for 127 days without a warrant for this information is distressing. If the state were to seek a warrant for a gps on Mr. carpenters vehicle this would have clearly violated the particularity requirement of warrants. I don’t see any reason why it should be any different for cell-site locators.
Lastly I think that current Americans have more of an expectation of privacy on their cell-phones than their homes. We lock our cell-phones, turn location services off intentionally, keep bank records on our cellphones, and record or most intimate pictures, conversations, and secrets on our cellphones. To infringe on this property seems like a clear violation of Katz, any property analysis,and a common sense reading of the 4th Ammendment.
In the U.S. v. Carpenter case, Justice Gorsuch suggested that the case should be decided on trespass grounds instead of taking a privacy-based approach. Do you agree?
1. This would be a horrendous decision that would, I think, spiral wildly out of control and far from the reaches of the Fourth Amendment. Assigning property rights to Carpenter in information about his location that he did not beget is unprecedented.
For trespass to have a sound foundation in property law, there must be an owner who holds the right to exclude others from access to the property. If the Carpenter case were to be decided on a trespass theory, Carpenter would have to be found to hold the right to exclude others from information about his location. No matter how narrowly the Court holds this right to be today, such a theory would shift the very foundations of property.
By what means would Carpenter even hold a right to exclusion? The analogous “capturer” of Carpenter’s data is the program on the cellphone itself. The cellphone company, which created the program, is the entity which created the digitized information on Carpenter, and would be the owner in classic property law. Carpenter’s only claim to ownership of this data would have to stem from something fundamental to the legal system, but no such thing presently exists. Gorsuch is suggesting not that Carpenter be given a new right, but that a new “manner in which rights can be given” be created for the sole purpose of granting Carpenter a right.
To give Carpenter rights in information about his location is to give him rights in his neighbor’s eyes; it gives the landscape the right to the painter’s canvas; it gives the boat the right to its wake. The consequences to the law as a whole would be so large as to be unpredictable.
I agree with the Court that the third-party doctrine has reached the end of its rope, and something needs to change for the Fourth Amendment to secure any rights, but I think the Katz doctrine is much better suited to handle this case than a brand-new property right. The Katz test’s right to privacy/right to freedom from government balances ‘private interests’ and ‘government interests’, which are much more ethereal policy questions of incentive and disincentive, and are limited to the scope of Fourth Amendment questions before the Court. A property right is one that can be created freely, and would be enforceable against everyone where applicable, even private citizens.
It’s just a dangerous idea, and I don’t think Gorsuch thought things through.
Going back to the idea of trespass in these kinds of cases would be taking 4th amendment jurisprudence backwards 60 years . It may sound like a good idea to have property rights in your information, but the court hasn’t really fully articulated what that would look like. And who knows how the courts would interpret such a right for trespass purposes. I would be extremely leery about changing the body of fourth amendment law at a time when we don’t really understand all of the ways in which of information can be acquired by the government.
The third party doctrine does seem out of step with the ways the government is trying to use it now. Basically, the government claims it is entitled to this vast array of information as merely business records. The scope of the information being kept today far exceeds what was known at the time of the passage of the Stored Communications Act. In the same way a cell phone is not a container in the search incident to arrest context as the Supreme Court held in Riley, the business records rationale should not withstand scrutiny. In Carpenter the government was able to track him virtually 24 hours a day for 114 days through location pings on his phone and apps. Is that what you expect when you download an app for your phone? That the government will be able to track you because you want to read CNN while on line at the grocery store?! I hope it isn’t what you thought you were signing up for.
The cell site simulator situation is a huge problem and has created all kinds of ethical issues. Prosecutors and law enforcement have actually lied under oath to avoid disclosing the use of the cell simulators. A horrendous murder trial in Baltimore was dismissed because the police would not testify how they got their information. But, turn about is fair play, it’s been discovered that someone who is NOT the government is using cell site simulators in DC to spy on the government. Really, it’s now like something out of a bad spy novel. The cell simulator picks up all calls and texts in the area of its location. It is not restricted to just the target. So, in addition to the target, many innocent people’s rights are also being violated with the simulator use.