April 14th, 2016
Cell Site Location Information and United States v. Jones
By: William Simoneaux
This post by the Electronic Frontier Foundation discusses a recent decision upholding the lawfulness of the FBI’s warrantless request for cell site location information (CSLI), used to help convict two defendants by linking them to the locations of various robberies. In United States v. Carpenter, the Sixth Circuit reasoned that the location information was conveyance information necessary to make the call, as distinct from the content of the call itself.
The EFF filed an amicus brief in the case arguing for the opposite result. It pointed out that, despite the Sixth Circuit’s point that the information was not as precise as GPS data, it was precise enough “to place one of the defendants at church every Sunday.” Additionally, the EFF argued that the volume of information collected, three to four months worth, was problematic, especially when compared to the 28 days of monitoring that took place in United States v. Jones.
Based on the reasoning of both the Sixth Circuit’s opinion and the EFF’s response, any resolution of the relationship between the government’s use of CSLI and the Fourth Amendment should involve Jones. It is the Supreme Court case that most directly touches the question of the privacy interests involved in the government’s tracking of individuals’ location over time. The difficulty in looking to Jones for guidance, however, is that that case involved the physical placement of a GPS device on the defendant’s car, the deciding factor in Justice Scalia’s plurality opinion. With CSLI, no physical trespass ever need occur.
Justice Alito’s concurrence in Jones did not rely on the physical trespass argument, but rather on the duration and precision of the monitoring of the individual’s location. On the other hand, what does it mean that CSLI is possibly less precise than the GPS data in Jones, but still precise enough to glean information that touches on the privacy interests of the Fourth Amendment? Ultimately, clarification from the Supreme Court on just how great the privacy interest in one’s location over an extended period of time may be required.