Originally published by John Floyd.
Court Continue to Struggle with Cell Phone and Right to Privacy
Once considered a sacred cow, individual privacy has succumbed to governmental interference, especially in the area of how law enforcement cell phone technology to track and apprehend criminal suspects.
Cell site location information (“CSLI”) or global positioning system (“GPS”) real-time information can locate a cell phone within 5 to 10 feet of its location through identification information collected by multiple cell towers about the device. The National Association of Criminal Defense Lawyers’ (“NACDL”) primer on Cell Phone Location Tracking refers to this technique as “triangulation.”
A cell phone’s CSLI falls into two categories: “historical” or “prospective.” Most often, however, CSLI falls in to the historical category while GPS real-time information falls into the prospective category.
The NACDL primer notes that law enforcement can use historical CSLI to connect a suspect to the location of a past crime allowing them to associate him or her to past incriminating events. Prospective location has a more immediate benefit—it allows law enforcement to trace the current whereabouts of a suspect in order to make an arrest.
The NACDL also instructs that federal law enforcement officials rely primarily on two statutes to secure an order of production against cell phone service providers to gain access to either CSLI or both GPS real-time information in order to track, locate, and/or incriminate an individual suspected of criminal activity. These statutes are:
18 U.S.C. §§ 2701-2703 (Stored Communications Act) – deals primarily with historical information (records stored by cell phone service provider detailing past locations of the cell phone). An order for production under this statute requires a showing to a judge or magistrate that “specific and articulable facts” show that the information sought is “relevant and material to an ongoing criminal investigation.” 18 U.S.C. §§ 3121-3127 (Pen/Trap Statute) – deals with prospective real-time location information (all cell site information after government granted authority to acquire it and “real time” information pinpointing the present location of the cell phone). An order for production under this statute requires the same standard as the Stored Communications Act but must also meet the Pen/Trap Statute’s requirement “that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.”
Texas’s version of these two federal statutes combined is Article 18.21 of the state’s Code of Criminal Procedure.
Expectation of Privacy in Texas
On January 16, 2019, the Texas Court of Criminal Appeals (“CCA”) issued an opinion in Sims v. State dealing with the Stored Communications Act and Article 18.21. The Sims case dealt with law enforcement using real-time location information to track the suspect’s cell phone by “pinging” it without a warrant. That prospective information allowed law enforcement to locate and arrest the suspect. Sims sought to suppress this prospective real-time information because the search violated the Fourth Amendment to the U.S. Constitution, the Stored Communications Act, and Article 18.21.
The CCA granted review in the Sims case to decide two issues:
Whether suppression is a remedy for a violation of the Stored Communications Act and Article 18.21; and Whether a person is entitled to a reasonable expectation of privacy in real-time CSLI records stored in a cell phone’s electronic storage.
The CCA ruled that suppression is not a remedy for a violation of the Stored Communications Act and/or Article 18.21 unless that violation infringes upon the U.S. or Texas constitutions. As for the Fourth Amendment privacy issue, the Court concluded that under the facts of the Sims case the defendant did not enjoy an expectation of privacy to the real-time location information stored in his cell phone.
Last year the U.S. Supreme Court in Carpenter v. United States ruled that an individual has certain expectations of privacy in stored cell phone information equivalent to the Fourth Amendment protections against physical intrusions in other areas. Five justices in Carpenter, including the majority opinion written by Chief Justice Roberts, chose to use a “physical-trespass theory” over the historical “expectation-of-privacy theory” to conclude that “longer term GPS monitoring” could nonetheless violate an individual’s legitimate expectation of privacy “regardless [of] whether those movements were disclosed to the public at large.”
Expectation of Privacy Depends of Quantity of Information Searched, Seized
The Texas CCA pointed out that while Carpenter dealt with historical CSLI information, not GPS real-time information, the CCA nonetheless believes Carpenter applies to both historical and prospective (real-time) information. Against that constitutional backdrop, the CCA concluded in Sims:
“Whether a particular government action constitutes a ‘search’ or ‘seizure’ does not turn on the content of the CSLI records; it turns on whether the government searched or seized ‘enough’ information that it violated a legitimate expectation of privacy. There is no bright-line rule for determining how long police must track a person’s cell phone in real time before it violates a person’s legitimate expectation of privacy in those records. Whether a person has a recognized expectation of privacy in real-time CSLI records must be decided on a case-by-case basis.”
The CCA pointed out that this legal conclusion was based on the factual difference between Sims and Carpenter. Law enforcement in the Sims case accessed “three hours of real-time CSLI records” by pinging the defendant’s cell phone less than five times while law enforcement in Carpenter accessed more than seven days of CSLI from the cell phone service provider.
Chief Justice Roberts also confined the Carpenter ruling to the specific facts in that case as the Texas CCA did in Sims.
Thus, it appears to us that the two courts are saying that brief intrusions on historical CSLI and/or GPS real time information do not violate the expectation of privacy guaranteed by the Fourth Amendment but extended surveillance in either or both areas of information violates an individual’s privacy rights.
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