Warrantless Location Tracking by: Ian James Samuel

1. Warrantless Location Trackingby: Ian James Samuel

2. Article • New York University Law Review • October 2008 • Vol. 83 • Issue 4

3. Thesis • “…I invoke the statutory canon of "constitutional doubt" and argue that the ambiguous statutes should be read in a way that will not require those difficult constitutional questions to be confronted. Because the doubts are grounded in the Fourth Amendment, the easiest way to avoid these hard questions is to read the statutes to require a warrant, founded on probable cause, to track a person's cell phone. In making this move, I part company with other judges and commentators who have written on the topic and who generally have focused entirely on the simple "yes/no" question of constitutionality or statutory legality, without much consideration of how the two interact.”

4. Background • Technological advances have allowed for many new developments for police investigation • Cell phone tracking is quickly becoming the easiest way for police to track a person location – even though it is very murky about the legality of it • Cell phone tracking is even available to ordinary people

5. Cell Phone Tracking • A cell phone is a radio • It uses radio towers (cell towers) to communicate with other phones • These towers are distributed throughout the area and a cell phone is usually in range of more than one • To be able to track the phone the cell phone companies use radio triangulation

6. Radio Triangulation • To be able to do radio triangulation, the police look at the phone’s time and angle of arrival at many radio towers and calculate the location of broadcast. The more densely populated an area is with cell phone towers the easier it is to locate a person. These locations are very accurate and usually only off by a few meters. With this technology, you are able to be tracked anywhere on the globe.

7. Pen Register • In order for the police to be able to track your cell phone they must get a Pen Register • A Pen Register is the legal mechanism for the police to be able to take the location information from the cell phone company • Problem: this is an old requirement and not up to date with the new technology

8. Problem with Pen Register • Original Pen Register’s simply states that the police are only going to get the information that a phone call occurred and the numbers involved. • Even though new technology is emerging, the courts still build on old paradigms. This is done without looking to see if the new technology challenges the assumptions of the past. The judges usually grant wholly to the order without comment on it. The simplest explanation for this is that the judge trusted the US Attorney’s statement about the legality of the law and since the proceedings are ex parte, no one ever questioned it.

9. Problem with Penn Register • In 2005, Judge Orenstein admitted to having signed many of these orders but concluded by saying that they were all illegal without probable cause. This was the first opinion on the issue and shocked many lawyers who had come to regard the granting of these orders as standard. • This opinion started a small uproar in which many other magistrate judges also issued opinions reaching the same conclusion. It also caused many judges to issue opinions on the other side of that argument. • The debate is still live today.

10. Statutory Disagreement • Content/Envelope distinctions • Ambiguous statutory text • Candidates for statutory partners

11. Distinctions • Every communication network has two kinds of information. These are the content of the communications (content) and the addressing and routing of the information (envelope). Content distinctions tend to have high procedural requirements and envelope distinctions tend to have lower procedural requirements.

12. Ambiguous Text • Core issue of this dispute is not whether the cell phone company can get the cell phone information but rather what standard it must meet in order for a court to give permission. The Pen Register Act sets out legal processes for obtaining the order, plus the location tracking order. The Communications Assistance for Law Enforcement Act (CALEA) sets that you may not use the Pen Register to get tracking information, you need to have another order in conjunction with that one in order to gain that information. Only come laws are able to combine with the Pen Register Act though.

13. Partners • It is hard to decide which laws are allowed to be combined with the Pen Register and which are not because CALEA does not specify. Many partners have been proposed including the Stored Communications Act (SCA) and the Federal Rule of Criminal Procedure 41. The SCA has been turned down though because it deals mostly with past information stored on computers and the tracking would be looking forward into coming events not backward into past conversations. The Federal Rule is a good alternative because courts agree that probable cause is sufficient for tracking just disagree on whether it is necessary.

14. Surveillance

15. Constitutional Doubt • The Constitution is good source for the meaning of this question • Especially the 4th amendment because it already deals with regulating the police

16. Constitutional Doubt • What is it? • If a statute admits two constructions, one of which is constitutionally uncontroversial and the other of which requires a major decision on a hard question of constitutional law, the former is better • Does not require that once interpretation be unconstitutional, only that one is very controversial • Also known as Constitutional Avoidance

17. Constitutional Doubt • The 4th amendment is the significant source of Constitutional doubt in this case • The 4th amendment prohibits the “unreasonable search or seizure” of the state and it’s agents of “persons, houses, papers, and effects” • The founders never thought to include cell phones because they didn’t exist

18. 4th amendment • There are no Supreme Court cases on cell phone tracking because it is a new technology. The author argues that when drafting the amendment, the founders did not include this because they could not possibly know that this technology was coming and their idea of tracking someone was hiring a person to physically do it. Even with the invention of the radio, the police still had to make physical contact to be able to ensure that the object was going to be in the suspects procession.

19. Constitutional Doubt • Is the constant monitoring of a person’s every move a search? • The author argues yes • Search does not have it’s original meaning when in context of the 4th amendment

20. Constitutional Doubt • Katz v United States • Justice Harlan wrote that the 4th amendment only extends to “expectations of privacy ...that society is prepared to recognize as 'reasonable’. Violating those expectations is permissible, but constitutes a Fourth Amendment "search”.”

21. Constitutional Doubt • Smith v Maryland • Supreme Court held that the use of Pen Registers was not a “search” for 4th amendment purposes and so the 4th amendment could not be used to regulate them • The Pen Register discussed here does not regulate today’s meaning of a Pen Register

22. Smith v United States • This case settles the question of “reasonable expectation of privacy” in dialed phone numbers and envelope information. However, it does not help in assessing the expectation in the location of a person’s phone. You can not apply this to all cases because of the blurry line between the definitions of the Pen Register.

23. Constitutional Doubt • Third Party Doctrine • Principle that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.“ • What does voluntarily conveying information mean? • The author states that there is no real definition for this and that it has been a disputed concept in the courts

24. Third Party Doctrine • The author holds that the third party doctrine does not apply to cell phone tracking. He states that because a cell phone passively communicates its location to radio towers without the user’s input the third party doctrine has no implication. Because the phone is constantly transmitting its location to the radio towers then it cannot be said that the owner is voluntarily conveying information to a third party.

25. Constitutional Doubt • The Beeper Cases : Knotts and Karo • In the early 1980’s the Supreme Court faced an early version of the technology being discussed : the beeper • The court held in these two cases that instillation and tracking of the beeper was not a search under the 4th amendment as long as the tracking was done only on public roads and in public places

26. Constitutional Doubt • The implication of these cases: • These cases suggest that cell phone tracking will not be constitutional without a warrant • Cell phones do not stay only on public roads and in public places they go everywhere the owner goes • This implies that cell phone tracking is indeed a search

27. Beeper vs. Cell Phone Tracking • The author argues that a beeper is only for the police to track a vehicle in public areas. It only allows for the police to know the general location of the vehicle whereas the cell phone tracking allows the police to be in constant surveillance of the individual even in public areas. This would allow the police to not have to do surveillance because they have the real-time substitute. Therefore it is highly doubtful that this type of tracking would be as lenient as a beeper type.

28. Constitutional Doubt • What kind of search is it? • Kyllo case – Justice Scalia held that what a search “reveals”, not what it literally monitors is the relevant point • Using this case the author states that in both cases private information about an item on the 4th amendment protection list is being revealed • Kyllo it is the home; Cell phone tracking it is the person

29. Constitutional Doubt • Is the search unreasonable? • The court has held that warrantless searches are presumptively unreasonable • The author uses this to state that cell phone tracking is an unreasonable search unless done with a warrant

30. Conclusion • Cell phone tracking raises issues about “location privacy” • New technology is on the rise and is raising many questions for the government to address • The writers of the 4th amendment and the Pen Register Act could not possibly have seen this technology coming • The doubtful constitutionality of cell phone tracking without a warrant compels reading the electronic surveillance statutes to require one