Can you hear me now? Time to consider whether cell phone providers are state actors.

• Author: Camacho, Sean D.G.

I cannot imagine a more "indiscriminate" and "arbitrary invasion" than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on "that degree of privacy" that the Founders enshrined in the Fourth Amendment. (1)

1. INTRODUCTION

   A study of smartphone users found that seventy-nine percent of respondents have their phones on or near them for almost their entire waking day. (2) By 2017, an estimated 67.8% of the U.S. population will use smartphones. (3) The increased adoption of smartphones changed the detail and frequency of how people interact with each other and within their communities, yielding intimate information about the individual user's relationships. (4) In June 2013, Edward Snowden, a former National Security Agency (NSA) contractor, became notorious for leaking classified information detailing a government program to collect cell phone metadata, also known as transactional information, and location information on virtually every U.S. citizen. (5) Transactional information is data individual users generate when their cell phones interact with outside entities, including businesses, organizations, and websites. (6) Snowden admits that he leaked the information to start a public debate about privacy and the morality of the government collection program. (7) The leaked information, however, may have created a new problem for cell phone service providers in forcing them to afford their subscribers constitutional privacy protections, a role usually reserved to the state. (8)

   The Constitution applies almost exclusively to government conduct and not to the conduct of private actors. (9) This concept is known as the state action doctrine, meaning private actors do not need to comply with the Constitution. (10) Private citizens or corporations, however, must conform to the Constitution if their actions fit either the exclusive public function or significant state involvement exceptions to the state action doctrine. (11)

   The Constitution guarantees the right to privacy under the Fourth Amendment. (12) In a mobile society, anchored by constant communication and social connection with our communities, the privacy rights secured by the Constitution are increasingly important. (13) Cell phone providers are at the intersection of individual privacy interests and state collection programs; they are private actors that provide an estimated 181.4 million Americans with smartphone access. (14)

   This Note will examine the history of the state action doctrine and the privacy protections afforded by the Constitution. (15) In Part II, this Note will explore the purpose behind the state action doctrine's construction. (16) Next, this Note will describe the test for applying the state action doctrine to private conduct and identify exceptions to state action. (17) This Note will then explain cell phone carriers' technology, infrastructure, and data collection practices. (18) This Note will also discuss the applications of location data and will identify laws governing data collection of individual subscribers. (19) Also in Part II, this Note will consider the privacy protections guaranteed by the Constitution and the doctrinal approaches to analyzing privacy rights. (20) This Note will then argue why the state action doctrine must apply to cell phone carriers. (21) Finally, this Note will argue cell phone subscriber location data deserves constitutional protection under the Fourth Amendment. (22)

2. HISTORY

   1. State Action Doctrine

      State action is action conducted by a government entity at any level. (23) The state action doctrine prohibits a government entity from conducting a "state action" that infringes upon an individual's constitutional rights. (24) The state action doctrine thereby creates a distinction between government and private actions to protect individual rights from the unique danger of government power. (25)

      The state action doctrine is a key component of the Fourteenth Amendment. (26) The Fourteenth Amendment creates "negative rights" or restraints on the power of the government over the people. (27) The constitutional restraints apply only to government entities--the Constitution does not protect against private citizen or corporate action. (28) Seven years after the Fourteenth Amendment's ratification, the Supreme Court solidified the requirement for state action through the holding that the Constitution applies only to government entities, not private citizens. (29) Four years after this initial decision, the Court held that private citizens may deny other citizens basic constitutional protections, such as equal protection, without violating the Constitution. (30) The Constitution is, therefore, limited because courts have no authority to stop private actions that infringe on constitutionally protected values. (31) The prohibition on slavery is the only provision in the Constitution that applies directly to private citizens as well as the government. (32)

      The state action doctrine may apply to private parties when the relationship between the government and the private action is so significant that the government is effectively responsible for the activity. (33) In Marsh v. Alabama, (34) an Alabama deputy sheriff arrested private citizens for distributing religious material on the sidewalk of a company-owned town. (35) The Court held that Alabama allowed a private corporation to oversee a community like a government entity, and, therefore, that private corporation could not restrict private citizens' constitutional rights. (36) Marsh carved out an exception to the state action doctrine for private entities conducting a "public function" to comply with the Constitution. (37) In Shelley v. Kraemer, (38) the state government enforced a racially restrictive covenant on the sale of real property. (39) A private citizen sued to restrict an African-American couple from taking possession of a home in a neighborhood subject to a racially restrictive covenant. (40) The Court reasoned that there is state action when private parties employ the "full coercive power of government," or "state powers in all forms," to deny other parties rights guaranteed by the Constitution. (41) The Supreme Court held that when the government, like in Shelley, is substantially "entangled" with a private actor or action that denies constitutional protections, there is state action requiring the private actor to comply with the Constitution. (42)

   2. Test To Apply State Action Doctrine to Private Conduct

      There is no universally accepted test for determining when the connection between government and private action is sufficient to establish state action. (43) Determining whether an action constitutes state action requires a case-by-case analysis to decide if there is a sufficient government connection to a private entities' activity. (44) That fact-specific analysis often yields unpredictable results because it requires courts to sort through details and weigh them in the context of case-specific circumstances. (45) The Supreme Court, however, held that state action might come in two forms--public function and entanglement--when the relationship between government and private actions are essentially actions of the government. (46) The public function exception exists when a private entity performs a function traditionally and exclusively reserved to the state. (47) Government tolerance of a private party's actions to conduct a public function is indicative, but not determinative, of state action. (48) The second exception, entanglement, occurs when the government encourages, authorizes, or facilitates a private entity to violate the Constitution. (49) The entanglement exception requires more than the involvement of the government to license, regulate, or fund the private actor or action. (50)

      In Edmonson v. Leesville Concrete Co., (51) the Supreme Court discussed a two-part test to determine what constitutes state action. (52) First, the private party's action that caused the deprivation of a constitutional right or privilege must have its source in government authority. (53) Second, the private party must be able to be described as a state actor. 54 To evaluate the second part of this test, a court considers "the extent to which the [private] actor relies on governmental assistance and benefits; whether the actor is performing a traditional government function," and if government authority aggravated the injury. (55)

   3. Cell Phone Carriers and Data Collection

      1. Cell Phone Technology

         Three-quarters of the world's population can acquire cell phone service. (56) One of the distinguishing features of cell phones is that they allow people to be readily available at any time or location. (57) To enable cell phone service, cellular phone providers must apply to the Federal Communications Commission (FCC) for licenses to operate on specific electromagnetic radio frequencies (spectrum). (58) The FCC allocated spectrum licenses to 734 geographic markets in the United States; cell phone providers can purchase a spectrum license in one of those geographic markets to operate its cellular networks. (59) Cell phone providers' cellular networks use spectrum licenses to allow cell phones to transmit sound, data, and video information wirelessly to nearby cellular towers. (60) Cell phones must relay their location data to nearby cellular towers to facilitate persistent and reliable wireless service. (61) An exchange of location data between cell phones and towers, or registration, occurs approximately every seven seconds when a phone is on, without any action needed by the cell phone user. (62)

         Cell phone carriers divide a service area or city into individual cells to provide a reliable cell phone signal. (63) Each cell is usually ten square miles and serviced by a base station that...