Service providers, especially wireless carriers, face new complexity in responding to requests for user information under the Stored Communications Act after the Fifth Circuit’s decision in In re Application of U.S. for Historical Cell Site Data, No. 08-4227 (5th Cir. July 30, 2013). The Fifth Circuit ruled that courts lack discretion to require probable cause when the government requests non-content information under the SCA (creating a split with the Third Circuit) and that compelling providers to produce records of user cell site data is not a Fourth Amendment search (not following dicta from the Third Circuit).
In October 2010, the United States filed three applications, pertaining to separate criminal investigations, requesting that the federal district court for the Southern District of Texas compel a cell phone service provider to produce historical cell site data under § 2703(d) of the Stored Communications Act (“SCA”). The federal magistrate reviewing the applications found that the applications met the “specific and articulable facts” standard for granting a 2703(d) order to compel non-content information such as cell site data, but denied the applications on grounds that compelled warrantless disclosure of cell site data violates the Fourth Amendment. The government filed objections to the magistrate’s ruling with the district court, but the district judge agreed with the magistrate, holding that “when the government requests records from cellular services, data disclosing the location of the telephone at the time of particular calls may be acquired only by a warrant issued on probable cause.”
In a similar case, the U.S. Court of Appeals for the Third Circuit had ruled that 2703(d) gives courts the discretion to deny a government request for non-content information supported by “specific and articulable facts” if the request does not meet the probable cause standard. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to the Gov’t, 620 F.3d 304, 315-17 (3d Cir. 2010). The Third Circuit also suggested in dicta that the Fourth Amendment might require a warrant to compel disclosure of cell site data, reasoning that the third party doctrine—which provides that information someone voluntarily discloses is not protected—does not apply because “a cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way.” Id. at 317.
By a 2-1 decision, the Fifth Circuit panel reversed the judgment of the district court. The panel majority interpreted 2703(d) as requiring courts to compel disclosure when the government has met the “specific and articulable facts” standard and the other statutory prerequisites. The majority then explained that the third party doctrine does apply to cell site data held by service providers because it is a “business record,” created and stored by providers for their own purposes without government influence. The majority rejected the argument that cell phone users do not voluntarily reveal location information to providers, finding that a reasonable cell phone user would know from either common knowledge or the provider’s terms or privacy policy that such data is collected and stored. The panel also noted that a private person’s decision to use a cell phone is entirely voluntary. The majority concluded:
We understand that cell phone users may reasonably want their location information to remain private, just as they may want their trash, placed curbside in opaque bags, Greenwood, 486 U.S. at 40-41, or the view of their property from 400 feet above the ground, Florida v. Riley, 488 U.S. 445, 451 (1989), to remain so. But the recourse for these desires is in the market or the political process: in demanding that service providers do away with such records (or anonymize them) or in lobbying elected representatives to enact statutory protections. The Fourth Amendment, safeguarded by the courts, protects only reasonable expectations of privacy. (emphasis in original)
Judge Dennis dissented from the panel’s decision. Examining the opinions in United States v. Jones, 132 S. Ct. 945 (2012), Judge Dennis observed that five Supreme Court justices had suggested that the third party doctrine might need to be revisited with respect to location data. Therefore, Judge Dennis reasoned, the proper interpretation of 2703(d) was one that would avoid the constitutional question by requiring “that warrant procedures be followed when the government seeks non-content records that may be protected by the Fourth Amendment. . . . [H]istorical cell site location records constitute one example of this potentially protected information.”
Judge Dennis wrote that the Fifth Circuit’s decision creates a circuit split not only on the issue of discretion but also on the Fourth Amendment issue: “The majority adopts the government’s position . . . that cellular customers do not have a Fourth Amendment privacy interest in historical cell site location information. On this point too, the majority splits from the Third Circuit, the only other Court of Appeals to have considered the issue.”
Until either the Supreme Court resolves the present uncertainty or Congress enacts new statutory protections for location information, service providers will face conflicting standards in responding to requests for cell site data and other non-content information under SCA § 2703(d).
