Cell Phone Location Tracking: Reforming the Standard to Reflect Modern Privacy Expectations

• Author: Shannon Jaeckel
• Position: J.D./D.C.L., 2017, Paul M. Hebert Law Center, Louisiana State University,
• Pages: 143-174

Cell Phone Location Tracking: Reforming the

Standard to Reflect Modern Privacy Expectations

INTRODUCTION

If you are like most cell phone users today, chances are, your cell

phone is within arm’s reach of you as you read this article. Ninety-one

percent of American adults own cell phones, and nearly two-thirds of that

group own smartphones, which are cell phones with computer operating

systems.1 Many cell phone users are al most never without their phones

during the waking day.2 Even while sleeping, most users keep their cell

phones near them and usually charge their phones on a bedside table.

Immediately after waking, most cell phone users reach for their cell

phones before doing anything else.3 The International Data Corporation’s

(“IDC”) research revealed that 63% of smartphone owners keep their

phones with them for all but one hour of the day, and 79% keep their

smartphones with them for all but two hours of the day.4 The research also

showed that one in four respondents could not recall a time in the day when

the phones were not within reach or in the same room.5

As these statistics demonstrate, cell phones have transformed the way

society communicates, conducts business, organizes daily affairs, and

connects with others throughout the world.6 In modern American

society—a society accustomed to having the ability to be in constant

contact with anyone, anytime, anywhere—the cell phone has become a

Copyright 2016, by SHANNON JAECKEL.

1. Always Connected: How Smartphones and Social Keep Us Engaged, INT’L

DATA CORP., http://www.nu.nl/files/IDC-Facebook%20Always%20Connected%

20(1).pdf [https://perma.cc/9AXV-BWRU] (last visited Oct. 13, 2015) [hereinafter

Always Connected].

2. See id.

3. Research surveying American adult smartphone owners showed that within

the first 15 minutes of waking up, four out of five users check their phones, and

among these people 80% reach for their phones before doing anything else. Id.

4. Id. The IDC surveyed 7,446 American smartphone users between the ages

of 18 and 44 over the course of one week to produce this research. Id.

5. Id.

6. Id. See also ECPA Reform and the Revolution in Location Based

Technologies and Services: Hearing Before the Subcomm. on the Constitution, Civil

Rights, and Civil Liberties of the H. Comm. on the Judiciary, 111th Cong. 18–19

(2010) (testimony of Prof. Matt Blaze), http://judiciary.house.gov/_files/hearings

/printers/111th/111-109_57082.PDF [https://perma.cc/2JWD-ZB9B] [hereinafter

ECPA Reform].

144 LOUISIANA LAW REVIEW [Vol. 77

critical social, communication, and information tool.7 Cell phones today

are not a mere convenience; they are a basic necessity to many Americans

and omnipresent in nearly all aspects of life.8

Society is able to stay connected because of recent developments in

cellular technology, but with this convenience comes a significant

drawback. Law enforcement can use cell phones to track individual’s

movements with greater ease. Cell phones automatically register their

location with cell phone towers every seven seconds,9 and users cannot

deactivate this function while the phone is powered on.10 Each time a cell

phone connects to a cell tower, cell site location information (“CSLI”) data

is generated.11 This information is capable of reconstructing a cell phone

user’s specific movements minute by minute.12 Cell service providers

store CSLI in cell tower records, often for several years. 13 Each year law

enforcement agencies submit millions of requests to cell service providers

for cell tower records, usually without a warrant.14 To accommodate the

large volume of data requests they receive, some cell service providers

have created detailed handbooks describing their policies for surveillance

assistance for law enforcement agents.15 Sprint has even created a website

7. Always Connected, supra note 1.

8. ECPA Reform, supra note 6, at 18–19.

9. Scott A. Fraser, Making Sense of New Technologies and Old Law: A New

Proposal for Historical Cell-Site Location Jurisprudence, 52 SANTA CLARA L.

REV. 571, 578 (2012).

10. Cell Phone Location Tracking Public Records Request, ACLU,

https://www.aclu.org/cases/cell-phone-location-tracking-public-records-request

[https://perma.cc/2U54-JN6D] (last updated Mar. 25, 2013).

11. See Nathaniel Wackman, Historical Cellular Location Information and

the Fourth Amendment, 2015 U. ILL. L. REV. 263, 269 (2015).

12. R. Craig Curtis, Michael C. Gizzi & Michael J. Kittleson, Using

Technology the Founders Never Dreamed of: Cell Phones as Tracking Devices

and the Fourth Amendment, 4 U. DENV. CRIM. L. REV. 61, 75 (2014).

13. Patrick E. Co rbett, The Fourth Amendment and Cell Site Location

Information: What Should We Do While We Wait for the Supremes?, 8 FED. CTS.

L. REV. 215, 217 (2015). According to the United States Department of Justice,

Sprint keeps location tracking records for 18–24 months, and AT&T has stored

cell tower records “since July 2008,” suggesting they are stored indefinitely. Cell

Phone Location Tracking Public Records Request, supra note 10.

14. Curtis, supra note 12, at 62–63.

15. Catherine Crump, Are the Police Tracking You r Calls?, CNN (May 2 2,

2012 3:23 PM), http://www.cnn.com/2012/05/22/opinion/crump-cellphone -

privacy [https://perma.cc/AER8-S36Z].

2016] COMMENT 145

for police to access the information conveniently with the simple click of

a mouse.16

Although police commonly use these convenient practices, no uniform

legal standard for judicial oversight exists.17 The current laws governing

CSLI in Louisiana and elsewhere are unclear and the laws fail to balance

properly the government’s interest in executing investigations with the

competing privacy interests in location information. Requiring law

enforcement to demonstrate probable cause that CSLI will reveal evidence

of a crime and to obtain a warrant before gathering CSLI would effectively

balance these interests and provide clear guidelines for law enforcement.

Both the Louisiana Constitution and the Louisiana statutes governing

CSLI should adopt this st andard. Louisiana courts should recognize the

privacy right in CSLI under Article 1, Section 5 of the Louisiana

Constitution,18 and the Louisiana legislature should enact a comprehensive

statutory scheme that sets forth clear guidelines governing all areas of

CSLI. Those guidelines should include exclusionary remedies and

exceptions to the warrant requirement so that both the courts and law

enforcement have a definitive set of rules to resolve CSLI issues.

Part I of this Comment discusses the history of CSLI technology and

the relevant federal statutes. This section explains the mechanics and

content of CSLI data; additionally, it illustrates recent advances in CSLI

technology and the importance of this information to law enforcement.

Part II analyzes the three most recent federal circuit court decisions in this

area of the law. These cases identify the analytical problems surrounding

CSLI and illustrate the extent to which courts have addressed these

problems. Part III examines state responses to CSLI with a particular focus

on how Louisiana courts and the Louisiana legislature have approached

the issue in comparison with other states. Part IV proposes that the

Louisiana legislature be proactive in adopting a comprehensive CSLI

statutory scheme rather than waiting for federal action. Specifically, the

courts should interpret the Louisiana Constitution more expansively to

provide additional privacy interest protections than currently exist under

16. Id.

17. Curtis, supra note 12, at 63.

18. The Louisiana Constitution provides:

Every person shall be secure in his per son, property, communications,

houses, papers, and effects against unreasonable searches, seizures, or

invasions of privacy. No warrant shall issue without probab le cause

supported by oath or affirmation, and particularly describing the place to

be searched, the persons or things to be seized, and the lawful purpose

or reason for the search.

LA. CONST. art. I, § 5.