Tuesday, June 26, 2007

But Do You Have A Reasonable Expectation Of Privacy With Your Cell Phone?

The recent decision by the Sixth Circuit US Court of Appeals (Warshak v. United States) that individuals have a reasonable expectation of privacy with respect to the contents of their emails may impact the spatial technology industry.

Warshak Case

Warshak concerned what steps the US government must take in order to compel a provider of electronic communication services (such as an ISP) to turn over emails and email-related information in connection with a criminal investigation under the 1986 Stored Communications Act. Sections 2703(b) and 2705 of the Act state in part that the government can compel such information, without notice to the customer, if "there were specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records of other information sought, are relevant and material to an ongoing criminal investigation."

The "specific and articulable facts" standard is considered lower than the probable cause (what to be seized is evidence of a crime) standard we all know from television shows. And it was this standard that the Sixth Circuit felt violated the reasonable expectation of privacy that individuals have in the content of their emails. In effect, the court found that in order for the government to compel disclosure of the contents of the email it must have probable cause.

Spatial Data and the Stored Communications Act

There have been a number of recent cases involving the attempted use by the government to use the specific and articulable facts standard in the Stored Communications Act to collect spatial data associated with electronic transmissions. (See e.g. In the Matter of the Application of the United States of America For An Order Authorizing the Release Of Prospective Cell Site Information, (407 F.Supp.2d 134); In the Matter Of An Application Of the United States For A Order Authorizing Pen Register And A Trap And Trace Device And Release Of Subscriber Information And/Or Cell Site Information; (384 F. Supp. 2d 562) In Re Application for Pen Register and Trap/Device with Cell Site Location Authority, 396 F.Supp. 2d 747 ) Specifically, the government has tried to use Section 2703(c) to collect "a record or other information pertaining to a subscriber to or a customer of such service". In all three instances the government was attempting to use the reasonable grounds standard under Section 2703(d) of the Act in order to obtain cell site data to track a customer's location in real or near real time rather than the higher probable cause standard that would be required to obtain approval to use a more standard tracking device to monitor a suspect's movements. However, in each case the court found that the government needed to have probable cause in order to compel disclosure of the cell tower data.


Each of the decisions regarding spatial data under the Stored Communications Act focused on the intent and history of the Act as well as other laws limiting the government's use of tracking devices. None spoke to whether individuals have a reasonable expectation of privacy with regards to their location. However, the Sixth Circuit's analysis of the Act, in conjunction with the other decisions of the Act regarding spatial data, suggests that such an expectation may not be unreasonable . . . at least in the Sixth Circuit. It will be very interesting to see whether other Circuit Courts follow the Sixth Circuit in this analysis and what impact it will have on location data and companies that collect and store such data.


Justin Bronn said...
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Justin Bronn said...

In U.S. v. Forrester, Nos. 05-50410, 05-50493, 2007 WL 1952390, (9th Cir. July 6, 2007), the court held that recording a computer user's IP address and e-mail To/From headers "are not Fourth Amendment searches"; however, their ruling "extends only to these particular techniques and does not imply that more intrusive techniques or techniques that reveal more content information are also constitutionally identical to the use of a pen register." Id. at *7 (emphasis added).

The court declined to rule on whether such data is covered by the SCA, specifically the portions relating to pen registers. See id. at *5 (referring to 18 U.S.C. §§ 3121-27).

Because spatial information only tells of the location of a possible communication, not the content of said communication, I opine it is probably not covered by the SCA (at least in the 9th circuit). Regardless, the DoJ does not exactly have a pristine track record for obeying the law in these matters -- they're too busy enforcing the law instead.

Kevin said...


Thanks for the heads up on Forrester. It will be very interesting to see what other cases arises and how they are decided. Although I am not convinced that the Forrester court would have reached a different decision than the 6th Circuit Courts given the same set of facts, I can see your point.