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Media Alerts - In re Application of the U.S.A. for Historical Cell Site Data - Fifth Circuit
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July 30, 2013
  In re Application of the U.S.A. for Historical Cell Site Data - Fifth Circuit
Headline: Fifth Circuit Upholds the Government's Authority to Obtain Cell Phone Location Data Without Demonstrating Probable Cause.

Area of Law: Constitutional law.

Issue Presented: Whether the Stored Communications Act violates the Fourth Amendment to the extent that it permits the government to obtain a court order compelling cell phone service providers to produce specific subscribers' historical cell site information without a showing of probable cause.

Brief Summary: The U.S. government sought court orders compelling cell phone service providers to turn over sixty days of cell site data on specific cell phones as evidence in ongoing criminal investigations. That data does not reveal the contents of any phone calls but does show the location of the phone when a call is made. The government proceeded under § 2703(d) of the Stored Communications Act (SCA), which allows the government to obtain such information without showing probable cause. The U.S. District Court for the Southern District of Texas denied the government's applications. The court reasoned that the SCA violated the Fourth Amendment because the SCA compelled production of the information without requiring the government to show probable cause, as it would ordinarily need to do in order to obtain a search warrant.

On appeal, the U.S. Court of Appeals for the Fifth Circuit vacated the district court's decision and instructed the district court to grant the government's applications. The Fifth Circuit held that § 2703(d) orders to obtain historical cell site information for specified cell phones are not categorically unconstitutional. The court reasoned that cell site data are business records maintained by the phone companies, and users know that they convey information about their location to their service providers when making calls and that they do so voluntarily. Thus, the court concluded, the government need not show probable cause as is usually required for a search warrant.

Significance: This case arises at the intersection of modern communications technology, government surveillance, and personal privacy. This decision also creates a circuit split. The Third Circuit has held that the SCA gives a judge the discretion to require a warrant supported by probable cause, even when the more lenient statutory requirements have been met.

Extended Summary: The U.S. government sought court orders compelling cell phone service providers to turn over sixty days of cell site data on three specific cell phones as evidence in ongoing criminal investigations. That data does not reveal the contents of the phone calls but does show the location of the phone when a call is made. The government proceeded under § 2703(d) of the Stored Communications Act (SCA), which allows the government to obtain such non-content information without showing probable cause and without obtaining a search warrant. The U.S. District Court for the Southern District of Texas held that the SCA's authorization of such orders for cell site information violated the Fourth Amendment to the Constitution and denied the government's applications. The court reasoned that the SCA violated the Fourth Amendment because the SCA compelled production of the information based on a showing of "specific and articulable facts" rather than the higher standard of probable cause that the Fourth Amendment requires to obtain a warrant.

On appeal, the U.S. Court of Appeals for the Fifth Circuit first considered arguments (raised by an amicus) that the case was not ripe until the government actually executed a search authorized by a § 2703(d) order. The court disagreed, reasoning that it did not need a concrete factual record in order to review the district court's holding that such orders are categorically unconstitutional. Turning to the merits, the Fifth Circuit held that § 2703(d) orders to obtain historical cell site information for specified cell phones at the times at which users place and terminate calls are not categorically unconstitutional. The court reasoned that cell site data are business records that service providers collect for their own operational purposes. Further, the court explained that users know that they convey information about their location to their service providers when making calls and that they do so voluntarily. The Fifth Circuit vacated the district court's order and remanded the case with instructions to grant the government's applications. The court pointed out that its holding was narrow in that it concerned historical data on specific phones; the case did not concern records of all phones connected to a particular cell tower, and it did not involve installation of government tracking devices.

Judge Dennis dissented. He would have read the statute as requiring a showing of probable cause to obtain the location data, thus avoiding the difficult constitutional question of whether a lesser standard is permissible.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...1/11-20884-CV0.wpd.pdf.

Panel: Circuit Judges Reavley, Dennis, and Clement

Argument Date: 10/02/2012

Date of Issued Opinion: 07/30/2013

Docket Number: No. 11-20884

Decided: Vacated and remanded

Case Alert Author: Deena Herndon-Remy

Counsel: Nathan Paul Judish, U.S. Department of Justice, for Appellant U.S.A.

Author of Opinion: Judge Clement (Judge Dennis dissenting)

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 07/30/2013 11:06 PM     5th Circuit  

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