Track me maybe: The fourth amendment and the use of cell phone tracking to facilitate arrest

Fordham Law Review

Volumn 81, Issue 1, 2012, Pages 489-535

  Rothstein, Jeremy H ^a  

^a NONE

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EID: 84870378255     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (33)

1. Julia Angwin & Scott Thurm, Judges Weigh Phone Tracking, WALL ST. J., Nov. 9, 2011, at Al.
2. In re U.S. for Historical Cell Site Data, No. 11-MC-223 (S.D. Tex, Nov. 11, 2011), available at http://online.wsj.com/public/resources/documents/ hughesorder1116.pdf.
3. Global Positioning System Factsheet, U.S. AIR FORCE (Sept. 15, 2010), http://www.af.mil/information/factsheets/factsheet.asp?id=119.
4. The FCC requires all phones to be GPS-enabled to facilitate emergency location under Enhanced 911 Phase II. See Enhanced 911, VERIZON WIRELESS, http://aboutus.verizonwireless.com/wirelessissues/enhanced911.html (last visited Sept. 21, 2012).
5. 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. 14 (2010) [hereinafter Blaze Testimony], available at http://judiciary.house.gov/hearings/ printers/111th/111-109-57082.PDF (statement of Matt Blaze, Professor, University of Pennsylvania).
6. Potential near-future developments include GPS III satellites capable of three times the accuracy. Press Release, Lockheed Martin, Lockheed Martin Team Completes Design Milestone for GPS III Program (July 5, 2011), available at http://www.lockheedmartin.com/us/news/press-releases/2011/july/gps3-sdr.html.
7. See id. at 27. Providers are collecting information for two reasons: (1) in response to Congressional and FCC directives to enhance the Emergency 911 system, and (2) to help determine where improvements to their infrastructure are needed. See Judge Smith Op., 1A1 F. Supp. 2d at 833; Blaze Testimony, supra note 22, at 27. Cell phones register or "handshake" with towers approximately eight times a minute, and each "handshake" can be recorded. David H. Goetz, Note, Locating Location Privacy, 26 BERKELEY TECH. L.J. 823, 837(2011).
8. Jennifer Valentino-DeVries, "Stingray" Phone Tracker Fuels Constitutional Clash, WALL ST. J., Sept. 22,2011, at Al.
9. Id. These devices are called "stingrays" or "triggerfish." Id. The law on these devices is murky. See id. See generally William Curtiss, Note, Triggering A Closer Review: Direct Acquisition of Cell Site Location Tracking Information and the Argument for Consistency Across Statutory Regimes, 45 COLUM. J.L. & SOC. PROBS. 139 (2011) (examining "the unique legal and practical implications of the use of triggerfish" and arguing that their use should require a showing of probable cause).
10. 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. 80 (2010) [hereinafter Smith Testimony], available at http://judiciary.house.gOv/hearings/ printers/111th/111-109-57082.PDF (statement of Stephen Wm. Smith, U.S. Mag. J.).
11. See Richard G. Wilkins, Defining the "Reasonable Expectation of Privacy": An Emerging Tripartite Analysis, 40 VAND. L. REV. 1077, 1084 (1987).
12. See Thomas K. Clancy, What Is a "Search" Within the Meaning of the Fourth Amendment?, 70 ALB. L. REV. 1, 54 n. 121 (2006).
13. See WAYNE R. LAFAVE, 1 SEARCH & SEIZURE § 2.1(c) (4th ed. 2011) ("[L]ittle attention has been given to the independent significance of the first factor or to precisely how it is to be interpreted.")
14. Renée McDonald Hutchins, The Anatomy of a Search: Intrusiveness and the Fourth Amendment, 44 U. RICH. L. REV. 1185, 1191 (2010) ("Increasingly, significant analysis of the first prong of the Katz test is noticeably absent from the Court's search jurisprudence.").
15. I LAFAVE, supra note 59, § 2.1(b) ("[I]t can hardly be said that the Court produced clarity where theretofore there had been uncertainty."); Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 349 (1974) ("For clarity and consistency, the law of the fourth amendment is not the Supreme Court's most successful product.").
16. Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 STAN. L. REV. 503 (2007).
17. 132 S. Ct. 945 (2012). This section is indebted to Kaitlyn Kerrane's Note on the issue, published in Volume 79 of the Fordham Law Review. Kaitlyn A. Kerrane, Note, Keeping Up with Officer Jones: A Comprehensive Look at the Fourth Amendment and GPS Surveillance, 79 FORDHAM L. REV. 1695 (2011).
18. Orin S. Kerr, The Mosaic Theory of the Fourth Amendment, 110 MICH. L. REV. (forthcoming 2012) (manuscript at 2), available at http://ssrn.com/ abstract=2032821 ("The concurring opinions in Jones raise the intriguing possibility that a majority of the Supreme Court is ready to endorse a new mosaic theory of Fourth Amendment protection.");
19. Tom Goldstein, Why Jones Is Still Less of a Pro-privacy Decision Than Most Thought (Conclusion Slightly Revised Jan. 31), SCOTUSBLOG (Jan. 30, 2012, 10:53 AM), http://www.scotusblog.com/2012/01/why-jones-is-still-less-of-a-pro- privacy-decision-than-most-thought ("[T]here was seemingly a majority for a more consequential decision holding that long-term monitoring (even by non-physical means) is a search requiring a warrant under the Fourth Amendment.").
20. Judge Smith Op, 141 F. Supp. 2d 827 (S.D. Tex. 2010). The district court affirmed the magistrate's opinion in one page. In re U.S. for Historical Cell Site Data, No. 11-MC-223 (S.D. Tex. Nov. 11, 2011), available at http://online.wsj.com/public/resources/documents/hughesorder1116.pdf.
21. Id. at 443. The latest of these was United Stales v. White, 401 U.S. 745 (1971). White held that Katz did not protect a misplaced belief that the person he confides in will not reveal his wrongdoing. Id. at 751-52. For an overview of these "Secret Agent Cases," see Orin S. Kerr, The Case for the Third-Party Doctrine, 107 MICH. L. REV. 561, 567-69 (2009).
22. Id. at 743-44. Neither Smith nor Miller use the term "third-party doctrine," but scholars have applied the name. See generally Stephen E. Henderson, The Timely Demise of the Fourth Amendment Third Party Doctrine, 96 IOWA L. REV. BULL. 39 (2011); Kerr, supra note 179.
23. See Kerr, supra note 179, at 564 (citing as examples 1 LAFAVE, supra note 59, § 2.7(c), and Daniel J. Solove, Fourth Amendment Codification and Professor Kerr's Misguided Call for Judicial Deference, 1A FORDHAM L. REV. 747, 753 (2005)).
24. Id. at 285-86. There were two Sixth Circuit Warshak cases, a 2008 civil case and a 2010 criminal case. Casey Perry, Note, U.S. v. Warshak: Will Fourth Amendment Protection Be Delivered to Your Inbox?, 12 N.C. J.L. & TECH. 345, 357 n.58 (2011). Each considered the application of the third-party doctrine to the contents of email. See id. A panel in the civil case ruled that individuals had a privacy interest in their email, but the Sixth Circuit sitting en banc vacated the panel, holding that the issue was unripe for judicial resolution. Warshak v. United States, 532 F.3d 521, 523 (6th Cir. 2008) (en banc). The Warshak decision discussed here is the 2010 criminal case.
25. Susan Freiwald, Cell Phone Location Data and the Fourth Amendment: A Question of Law, Not Fact, 70 MD. L. REV. 681, 684 (2011).
26. Judge Smith Op., 747 F. Supp. 2d 827, 846 (S.D. Tex. 2010), off"d In re U.S. for Historical Cell Site Data, No. 11-MC-223 (S.D. Tex, Nov. 11, 2011), available at http://online.wsj.com/public/resources/documents/hughesorder1116. pdf.
27. Id. The federal courts of appeal have split on the showing required under Pay/ton's "reason to believe" requirement. The Ninth Circuit has held that reason to believe requires a showing equivalent to probable cause. United States v. Gorman, 314 F.3d 1105, 1113 (9th Cir. 2002). Every other circuit to consider the issue has held that "reason to believe" requires some lesser showing. Michael A. Rabasca, Note, Payton v. New York: Is "Reason to Believe" Probable Cause or a Lesser Standard?, 5 SETON HALL CIRCUIT REV. 437, 445 (2009). Most recently, the Sixth Circuit held that reasonable belief requires "looking at common sense factors and evaluating the totality of the circumstances." United States v. Pruitt, 458 F.3d 477,482 (6th Cir. 2006).
28. *10. The opinion cites a Pew study finding that 65 percent of American adults have slept with their cell phone nearby. Amanda Lenhart, Cell Phones and American Adults, PEW INTERNET (Sept. 2, 2010), http://www.pewintemet.0rg/~/media/Files/Reports/2010/PIP-Adults-Cellphones- Report-2010.pdf.
29. Orin Kerr, Court Rules That Police Cannot Use Warrants to Obtain Cell Phone Location of Person Who is Subject of Arrest Warrant, VOLOKH CONSPIRACY (Aug. 8, 2011, 8:36 PM), http://volokh.com/2011/08/08/court-rules-that-police- cannot-use-warrants-to-obtain-cell-phone-location-of-person-who-is-subject-of- arrest-warrant/. Kerr's post provides links to some of his past arguments about cell phone tracking.
30. Orin Kerr, Legal Protection for Historical Cell-Site Records, VOLOKH CONSPIRACY (Feb. 3, 2010, 1:22 AM), http://volokh.com/2010/02/03/legal- protection-for-historical-cell-site-records/ (citing Smith v. Maryland, 442 U.S. 735 (1979)).
31. Orin Kerr, Fourth Amendment Stunner: Judge Rules That Cell-Site Data Protected by Fourth Amendment Warrant Requirement, VOLOKH CONSPIRACY (Aug. 31, 2010, 2:46 AM), http://www.volokh.com/2010/08/31/fourth-amendment-stunner-judge- rules-that-cell-site-data-protected-by-fourth-amendment-warrant-requirement/.
32. Orin Kerr, D.C. Circuit Introduces "Mosaic Theory" of Fourth Amendment, Holds GPS Monitoring a Fourth Amendment Search, VOLOKH CONSPIRACY (Aug. 6, 2010, 2:46 PM), http://volokh.com/2010/08/06/d-c-circuit-introduces- mosaic-theory-of-fourth-amendment-holds-gps-monitoring-a-fourth-amendment- search/ (citing United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010)).
33. Orin Kerr, Does the Fourth Amendment Prohibit Warrantless GPS Surveillance?, VOLOKH CONSPIRACY (Dec. 13, 2009, 9:46 PM), http://volokh.com/ 2009/12/13/does-the-fourth-amendment-prohibit-warrantless-gps-surveillance/ (citing United States v. Knotts, 460 U.S. 276 (1983)).