Giving up the Ghost in the Machine: Emergency Cellphone Tracking Under 18 U.S.C.

• Author: Guinan, Andrew
• Position: Section - C - 4

1. INTRODUCTION

   In the post-September 11 (th) world, our judiciary has been forced to confront the truth that "all free peoples have had to balance the demands of liberty with the demands of security." (1) This tension is not new, and in the past, "we Americans have been able to plant our flag well down the spectrum towards liberty." (2) Recently, however, the interception of electronic communications and other data by local, state, and federal law-enforcement authorities has emerged as a central point in the debate. (3) While many Americans might be willing to endure some degree of intrusion under the threat of national terrorism, the situations that implicate our most deeply held constitutional protections are rarely so clear or dramatic. Should we allow police to gather location data from a suspected robber's cellphone as evidence without a search warrant? (4) What about to arrest him before he strikes again? (5) What if not a robber but a drug dealer? (6) These examples may seem innocuous, even obvious to some. But what happens when police suspect you, and what harm will you suffer when it turns out they were wrong? These questions make up some of the murkiest depths of American Fourth Amendment jurisprudence, and confusion persists over when and within what constraints law enforcement can track your cellphone's location in real time. (7)

   Both statutory and constitutional law governs law-enforcement acquisition of information regarding cellphone service subscribers, including cellphone location data. The Stored Communications Act ("SCA," "the Act"), specifically 18 U.S.C. [section] 2702(a)(3), restricts the disclosure of cellphone data to the government by cellular service providers, (8) while [section] 2702(c)(4) ("the emergency provision") provides an exception for certain emergency situations. (9) other sections provide civil remedies for "nonconstitutional violations" of the Act. (10)

   The Fourth Amendment, meanwhile, prohibits unreasonable searches by the government and requires that warrants issue based on a finding of probable cause. (11) Historically, however, these protections have not attached when a person's information is held by certain third parties, including communications providers. (12) Accordingly, some courts have found that the short-term, real-time GPS tracking of a cellphone located in a public place does not implicate constitutionally protected privacy concerns and is therefore not a search under the Fourth Amendment. (13) Regardless, the exigent circumstances exception to the Fourth Amendment warrant requirement, which aligns closely with the emergency provision allowing disclosure of subscriber information under [section] 2702(c)(4), might justify such tracking without a warrant even if it were a search. (14) Finally, because the SCA provides exclusively civil remedies when no constitutional violation has occurred, (15) if a court finds that the Fourth Amendment does not apply, criminal defendants cannot move to suppress cellphone location information disclosed in violation of [section] 2702(c)(4). (16)

   Cellphones continuously and predictably transit areas traditionally endowed with the strongest Fourth Amendment protections, like the home. (17) This supports an objectively reasonable expectation of privacy in location information gained from even short-term live tracking of a cellphone. Without a clear standard holding that such tracking is a search, police will be unable to determine if their actions will unreasonably violate this expectation during any particular instance of tracking. (18) Further, while many such instances of short-term GPS monitoring will fall within the exigent circumstances exception to the warrant requirement, (19) failing to attach constitutional protections to short-term live tracking denies defendants the opportunity to suppress evidence when police improperly obtain GPS data under [section] 2702(c)(4), either by mistake or as the result of misconduct. (20) Holding such tracking to be a search also accords societal expectations of privacy that change as technology advances; however, it still permits police to avoid seeking a search warrant by invoking a traditional warrant exception or by relying instead on an arrest warrant, which may suffice for the purposes of short-term GPS tracking. (21)

   Part II of this Note provides an overview of Fourth Amendment protections, the SCA and its remedies, and the definition of a search in the context of the so-called third-party doctrine. It also explores contemporary cases which hold government collection of electronic location information to constitute a search. Part III considers recent developments, in which courts have nevertheless not required a warrant for police to engage in real-time tracking of a criminal defendant's cellphone. Part IV argues courts should consider such short-term live tracking to be a search when undertaken pursuant to the emergency provision of [section] 2702(c)(4) and therefore require a search warrant absent narrow exceptions, including exigent circumstances and the issuance of a valid arrest warrant. When police engage in this type of tracking, Fourth Amendment safeguards are required to shield a defendant's constitutionally protected activities from unforeseeable revelation, provide an adequate remedy when no exigency is found, and serve the underlying purposes of the SCA. Short-term requests for live cellphone GPS information pursuant to [section] 2702(c)(4) should therefore be considered a search under the Fourth Amendment and presumptively require a search warrant.

2. THE FOURTH AMENDMENT, THE SCA, AND THE RISE AND FALL OF THE THIRD-PARTY DOCTRINE

   Section 2702(a)(3) of Title 18 of the United States Code prohibits electronic communications providers from disclosing the "record[s] or other information pertaining to a subscriber... to any governmental entity." (22) The physical location of a user's cellphone is one example of "other information." (23) An exception to this general prohibition permits providers to voluntarily disclose subscriber information to the government when the provider, "in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay." (24)

   Beyond these statutory requirements, which bind service providers, government acquisition of subscriber information may be subject to additional constitutional restraints imposed by the Fourth Amendment. (25) Case law governing when a defendant has a reasonable expectation of privacy in cellphone location data and other electronically stored information held by third parties so as to trigger Fourth Amendment protections, continuously evolves alongside society's own privacy expectations. (26)

   Section A of this Part provides background on the basic protections afforded by the Fourth Amendment and describes the exigent circumstances exception to the warrant requirement. Section B provides a detailed summary of the development and erosion of the so-called "third-party doctrine" in parallel with changing technology and societal expectations of privacy. Finally, Section C explores the origins and purpose of the Stored Communications Act and the remedies it provides.

   1. Fourth Amendment Protections and the Exigent Circumstances Exception

      The Fourth Amendment protects against "unreasonable searches and seizures" by the government. (27) It ensures that "intrusion[s] by the police" are not "arbitrary," (28) but instead are reasonable and subjected to adequate scrutiny. (29) As such, searches conducted without a warrant are presumptively unreasonable. (30) This warrant requirement empowers an impartial judge, and not the police, to decide which intrusions are necessary based on a probable-cause standard. (31) Because the "ultimate touchstone of the Fourth Amendment is 'reasonableness,'" however, exceptions to the warrant requirement do exist. (32) Relevant here is the exigent circumstances exception. (33)

      When an exigency makes the need for police action "sufficiently compelling," (34) a search without a warrant may be "objectively reasonable" based on the totality of the circumstances." (35) The State bears the heavy burden of showing such an exigency. (36) Courts have found a valid showing of exigent circumstances in a variety of factual scenarios, including those involving a threat to police officers or the public. (37)

      Courts have held that police are justified in conducting a warrantless search to interrupt acts of continuing or potential violence. (38) In Brigham City v. Stewart, the Supreme Court of the United States held that exigent circumstances justified a warrantless entry into the defendants' home to stop a physical altercation. (39) The Court found that the subjective motivations of the officers are irrelevant in determining the propriety of a warrantless search, so long as circumstances allow for an objectively reasonable determination that immediate action is required to prevent violence or mitigate injury. (40) Similarly, in United States v. Thomas, the court held that exigent circumstances justified a warrantless search of a recently occupied apartment to recover a weapon and ensure nobody was left on the premises to use it against the officers or bystanders. (41)

      Many exceptions to the warrant requirement must be applied based on the totality of the circumstances of each individual case. (42) Where courts have been willing to delineate per se rules, they have often favored the defendant's privacy over the State's right to search. (43) Nevertheless, the development of the third-party doctrine placed the retrieval of some categories of information outside of the definition of a search entirely and therefore outside the protections of the Fourth Amendment as well. (44)

   2. What is a Search? Development and Erosion of the Third-Party Doctrine

      The question of whether government intrusion constituted a search within the meaning of the...