US v. Aaron Graham
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 1:11-cr-00094-RDB-1. [999837081]. [12-4659, 12-4825]
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ON REHEARING EN BANC
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4659
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AARON GRAHAM,
Defendant - Appellant.
-----------------------------------ELECTRONIC FRONTIER FOUNDATION; NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS; AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF MARYLAND; CENTER FOR DEMOCRACY & TECHNOLOGY;
AMERICAN CIVIL LIBERTIES UNION FOUNDATION; DOWNSIZEDC.ORG;
DOWNSIZE DC FOUNDATION; GUN OWNERS FOUNDATION; GUN OWNERS OF
AMERICA, INC.; INSTITUTE ON THE CONSTITUTION; REPORTERS
COMMITTEE FOR FREEDOM OF THE PRESS; UNITED STATES JUSTICE
FOUNDATION; CONSERVATIVE LEGAL DEFENSE AND EDUCATION FUND,
Amici Supporting Appellant.
No. 12-4825
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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ERIC JORDAN,
Defendant - Appellant.
-----------------------------------ELECTRONIC FRONTIER FOUNDATION; NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS; AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF MARYLAND; CENTER FOR DEMOCRACY & TECHNOLOGY;
AMERICAN CIVIL LIBERTIES UNION FOUNDATION; CONSERVATIVE
LEGAL DEFENSE AND EDUCATION FUND; DOWNSIZEDC.ORG; DOWNSIZE
DC FOUNDATION; GUN OWNERS OF AMERICA, INC.; GUN OWNERS
FOUNDATION;
INSTITUTE
ON
THE
CONSTITUTION;
REPORTERS
COMMITTEE FOR FREEDOM OF THE PRESS; UNITED STATES JUSTICE
FOUNDATION,
Amici Supporting Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:11-cr-00094-RDB-1; 1:11-cr-00094-RDB-2)
Argued:
March 23, 2016
Decided:
May 31, 2016
Before TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, MOTZ,
KING, GREGORY, SHEDD, DUNCAN, AGEE, KEENAN, WYNN, DIAZ, FLOYD,
THACKER, and HARRIS, Circuit Judges.
Affirmed by published opinion.
Judge Motz wrote the majority
opinion, in which Chief Judge Traxler and Judges Wilkinson,
Niemeyer, King, Gregory, Shedd, Duncan, Agee, Keenan, Diaz and
Harris joined.
Judge Wilkinson wrote a separate concurring
opinion. Judge Wynn wrote a dissenting opinion in which Judges
Floyd and Thacker joined.
ARGUED: Meghan Suzanne Skelton, OFFICE OF THE FEDERAL PUBLIC
DEFENDER,
Greenbelt,
Maryland,
for
Appellants.
Rod
J.
Rosenstein, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
ON BRIEF:
James Wyda, Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore,
Maryland, for Appellant Aaron Graham; Ruth Vernet, RUTH J.
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VERNET, ESQ., LLC, Rockville, Maryland, for Appellant Eric
Jordan.
Nathan Judish, Computer Crime & Intellectual Property
Section, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.;
Sujit Raman, Chief of Appeals, Greenbelt, Maryland, Benjamin M.
Block, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Nathan
Freed Wessler, Catherine Crump, Ben Wizner, AMERICAN CIVIL
LIBERTIES UNION FOUNDATION, New York, New York; David R. Rocah,
AMERICAN
CIVIL
LIBERTIES
UNION
FOUNDATION
OF
MARYLAND,
Baltimore, Maryland; Kevin S. Bankston, Gregory T. Nojeim,
CENTER FOR DEMOCRACY & TECHNOLOGY, Washington, D.C.; Thomas K.
Maher, Vice-Chair, 4th Circuit Amicus Committee, NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, Durham, North Carolina;
Hanni Fakhoury, ELECTRONIC FRONTIER FOUNDATION, San Francisco,
California, for Amici American Civil Liberties Union Foundation,
American Civil Liberties Union Foundation of Maryland, Center
for Democracy & Technology, Electronic Frontier Foundation, and
National Association of Criminal Defense Lawyers.
Michael
Connelly, Ramona, California, for Amicus United States Justice
Foundation; Robert J. Olson, Herbert W. Titus, William J. Olson,
Jeremiah L. Morgan, WILLIAM J. OLSON, P.C., Vienna, Virginia,
for Amici DownsizeDC.org, Downsize DC Foundation, United States
Justice Foundation, Gun Owners of America, Inc., Gun Owners
Foundation, Conservative Legal Defense and Education Fund, and
Institute on the Constitution.
Bruce D. Brown, Gregg Leslie,
Hannah Bloch-Wehba, REPORTERS COMMITTEE FOR FREEDOM OF THE
PRESS, Washington, D.C., for Amicus Reporters Committee for
Freedom of the Press.
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DIANA GRIBBON MOTZ, Circuit Judge:
In United States v. Graham, 796 F.3d 332 (4th Cir. 2015), a
panel of this court affirmed the convictions of Defendants Aaron
Graham and Eric Jordan arising from their participation in a
series of armed robberies.
The panel opinion sets out the facts
of this case in great detail.
now
relevant
investigation
location
during
the
which
information
provider.
usually
concern
Id. at 339-43.
portion
it
of
obtained
(CSLI)
from
The only facts
the
Government’s
historical
Defendants’
cell-site
cell
phone
This historical CSLI indicated which cell tower --
the
one
closest
to
the
cell
phone
--
transmitted
a
signal when the Defendants used their cell phones to make and
receive calls and texts.
The Government used the historical
CSLI at Defendants’ trial to place them in the vicinity of the
armed robberies when the robberies had occurred.
A majority of the panel held that, although the Government
acted in good faith in doing so, it had violated Defendants’
Fourth
Amendment
warrant.
must
Government
when
it
obtained
the
CSLI
without
a
The majority directed that henceforth the Government
secure
obtaining
rights
a
these
moved
warrant
supported
records
for
from
cell
rehearing
vacating the panel opinion.
by
en
probable
phone
banc,
cause
before
providers.
which
we
The
granted,
See United States v. Graham, 624 F.
App’x 75 (4th Cir. 2015); 4th Cir. R. 35(c).
4
We now hold that
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the Government’s acquisition of historical CSLI from Defendants’
cell phone provider did not violate the Fourth Amendment. 1
Supreme Court precedent mandates this conclusion.
Court
has
long
held
that
an
individual
enjoys
For the
no
Fourth
Amendment protection “in information he voluntarily turns over
to [a] third part[y].”
(1979).
when
Smith v. Maryland, 442 U.S. 735, 743-44
This rule -- the third-party doctrine -- applies even
“the
information
is
revealed”
to
a
third
party,
as
it
assertedly was here, “on the assumption that it will be used
only for a limited purpose and the confidence placed in the
third party will not be betrayed.”
U.S.
435,
443
(1976).
All
of
1
United States v. Miller, 425
our
sister
circuits
to
have
We reinstate the affirmance of Defendants’ convictions and
sentences and adopt the panel opinion with respect to all issues
not addressed in this opinion. We note that, after en banc oral
argument, Defendants moved to file supplemental briefing on a
new claim, based on Johnson v. United States, 135 S. Ct. 2551,
2554 (2015).
Defendants argued, for the first time, that
Johnson’s holding rendering 18 U.S.C. § 924(e) void for
vagueness also renders void different language in § 924(c). We
denied the motion as untimely. Even if we were to consider
Defendants’ late claim, however, it would not survive plain
error review.
United States v. Carthorne, 726 F.3d 503, 516
(4th Cir. 2013) (“An error is plain ‘if the settled law of the
Supreme Court or this circuit establishes that an error has
occurred.’”). This court has not yet addressed this claim, and
our sister circuits have divided on the issue.
Compare United
States v. Vivas–Ceja, 808 F.3d 719, 723 (7th Cir. 2015)
(applying Johnson to find language identical to § 924(c) void
for vagueness), and Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th
Cir. 2015) (same), with United States v. Taylor, 814 F.3d 340,
375-79 (6th Cir. 2016) (declining to find § 924(c) void for
vagueness after Johnson).
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considered the question have held, as we do today, that the
government does not violate the Fourth Amendment when it obtains
historical CSLI from a service provider without a warrant.
addition
to
disregarding
precedent,
Defendants’
In
contrary
arguments misunderstand the nature of CSLI, improperly attempt
to
redefine
the
third-party
doctrine,
and
blur
the
critical
distinction between content and non-content information.
The
Supreme
eliminate,
the
Court
may
third-party
in
the
future
doctrine.
require a warrant for CSLI.
limit,
Congress
or
may
even
act
to
But without a change in controlling
law, we cannot conclude that the Government violated the Fourth
Amendment in this case.
I.
The
people
Fourth
to
be
Amendment
secure
in
ensures
their
that
persons,
“[t]he
houses,
right
of
the
papers,
and
effects, against unreasonable searches and seizures, shall not
be
violated.”
U.S.
Amendment
search
subjective
expectation
reasonable.”
Const.
occurs
of
amend.
when
privacy
the
IV.
Broadly,
government
that
society
“a
Fourth
violates
a
recognizes
as
Kyllo v. United States, 533 U.S. 27, 33 (2001).
The issue that confronts us here is whether the Government’s
acquisition of the historical CSLI records constituted a Fourth
Amendment search.
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In assessing whether such a search has occurred, “it is
important to begin by specifying precisely the nature of the
state activity that is challenged.”
(emphasis added).
Smith, 442 U.S. at 741
Here, that “activity” is the Government’s
acquisition from a phone company, Sprint/Nextel, of historical
CSLI records -- i.e., the records of the phone company that
identify which cell towers it used to route Defendants’ calls
and
messages.
listen
to,
The
record,
Government
or
in
did
any
not
other
surreptitiously
way
engage
in
surveillance of Defendants to obtain this information.
view,
direct
Rather,
as the Sprint/Nextel custodian of the CSLI records testified at
trial, CSLI is created and maintained in the normal course of
Sprint/Nextel’s
that
service
business.
providers,
Defendants
like
themselves
Sprint/Nextel,
acknowledge
maintain
records “[b]y technical and practical necessity.”
CSLI
Defendants’
Br. at 13. 2
Moreover,
Government
directing
had
the
to
to
obtain
apply
company
to
the
to
CSLI
a
federal
disclose
2
from
the
Sprint/Nextel,
court
records.
for
an
The
the
order
Stored
As the Sixth Circuit explained, “[c]arriers necessarily
track their customers’ phones across different cell-site sectors
to connect and maintain their customers’ calls,” and keep CSLI
records “to find weak spots in their network and to determine
whether roaming charges apply, among other purposes.”
United
States v. Carpenter, Nos. 14-1572/1805, 2016 WL 1445183, at *4.
(6th Cir. Apr. 13, 2016).
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Communications
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Act
(SCA
or
the
Pg: 8 of 66
Act)
provides
that,
to
gain
access to even these non-content records, the Government must
demonstrate either probable cause for a warrant or “specific and
articulable facts showing that there are reasonable grounds to
believe that . . . the records . . . are relevant and material
to an ongoing criminal investigation” for a court order.
U.S.C.
§
2703(c),
(d)
(2012).
The
Government
followed
18
the
second route and Defendants do not contend that in doing so it
failed to meet the requirements of the Act.
contend
is
that
in
permitting
the
What Defendants do
Government
to
obtain
the
Sprint/Nextel records in this way, the Act violates the Fourth
Amendment.
According to Defendants, the statute permits the
Government
to
unconstitutionally
collect
their
private
information.
This
activity
those
in
argument
here,
which
ignores
which
the
private information.
the
critically
government
nature
of
distinguishes
the
did
governmental
this
case
unconstitutionally
from
collect
In United States v. Karo, 468 U.S. 705,
714-15 (1984), for instance, the Drug Enforcement Agency placed
a beeper within a can of ether and received tracking information
from the beeper while the can was inside a private residence.
Similarly, in Kyllo, 533 U.S. at 34-35, the Department of the
Interior used a thermal imager to gather “information regarding
the interior of the home.”
And in United States v. Jones, 132
8
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945,
enforcement
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948-49,
secretly
954
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(2012),
installed
a
the
GPS
FBI
and
tracking
local
device
law
on
a
suspect’s vehicle and monitored the vehicle’s movements for four
weeks. 3
On the basis of these cases, Defendants contend that the
government always invades an individual’s reasonable expectation
of privacy when it employs technological devices to track an
individual’s
before us.
the
question
moves.
Perhaps
so.
But
that
question
No government tracking is at issue here.
before
us
is
whether
the
government
is
not
Rather,
invades
an
individual’s reasonable expectation of privacy when it obtains,
from a third party, the third party’s records, which permit the
government to deduce location information.
3
Karo, Kyllo, and
Contrary to Defendants’ suggestion, and unlike the
information in Karo and Jones, the CSLI obtained here does not
enable the government to “place an individual” at home or at
other private locations. The historical CSLI at issue here does
not provide location information anywhere near that specific.
Rather, the record evidence establishes that each of the cell
sites at issue here covers an area with a radius of up to two
miles, and each data point of CSLI corresponds to a roughly 120degree sector of a cell site’s coverage area.
That means the
CSLI could only determine the four-square-mile area within which
a person used his cell phone.
Although we do not think the
applicability of the Fourth Amendment hinges on the precision of
CSLI, it is premature to equate CSLI with the surveillance
information obtained in Karo and Jones.
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Jones,
all
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of
which
involve
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direct
government
surveillance
activity, tell us nothing about the answer to that question. 4
Instead, the cases that establish the third-party doctrine
provide
the
answer.
Under
the
third-party
doctrine,
an
individual can claim “no legitimate expectation of privacy” in
information
party.
reasoned
that
he
Smith,
442
that,
by
has
U.S.
voluntarily
at
743-44.
“revealing
his
turned
over
The
Supreme
affairs
to
to
a
third
Court
has
another,”
an
individual “takes the risk . . . that the information will be
conveyed by that person to the Government.”
443.
The
Fourth
Amendment
does
not
Miller, 425 U.S. at
protect
information
voluntarily disclosed to a third party because even a subjective
expectation
of
privacy
in
such
information
is
“not
society is prepared to recognize as ‘reasonable.’”
one
that
Smith, 442
U.S. at 743 (internal quotation marks and citation omitted).
The government therefore does not engage in a Fourth Amendment
“search” when it acquires such information from a third party. 5
4
Like these instances of government surveillance, when the
government uses cell-site simulators (often called “stingrays”)
to directly intercept CSLI instead of obtaining CSLI records
from phone companies, the Department of Justice requires a
warrant.
See Dep’t of Justice, Department of Justice Policy
Guidance: Use of Cell-Site Simulators 3 (2015), available at
https://www.justice.gov/opa/file/767321/download.
5 Defendants argue that “[t]he government, not the cellular
service providers, surveilled [them].”
Defendants’ En Banc Br.
at 7.
This is assertedly so because (1) the Communications
Assistance For Law Enforcement Act, 47 U.S.C. § 1002 (2012)
(Continued)
10
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Applying
case,
we
expectation
Court’s
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the
third-party
hold
that
of
privacy
reasoning
in
Pg: 11 of 66
doctrine
Defendants
in
the
Smith
did
to
the
not
have
historical
CSLI.
controls.
There,
facts
a
of
this
reasonable
The
the
Supreme
defendant
challenged the government’s use of a pen register -- a device
that could record the outgoing phone numbers dialed from his
home telephone.
could
numbers
“claim
those
he
no
had
numbers
Id. at 737.
legitimate
dialed
to
the
The Court held that the defendant
expectation
because
phone
he
had
company
of
privacy”
“voluntarily
by
in
the
conveyed”
“‘expos[ing]’
that
information to” the phone company’s “equipment in the ordinary
course
of
business.”
Id.
at
744.
The
defendant
thereby
“assumed the risk that the company would reveal to police the
numbers he dialed.”
Id.
(CALEA), requires service providers to have the capacity to
allow law enforcement to access CSLI, and (2) service providers
use CSLI in the aggregate, while law enforcement analyzes
individuals’ CSLI to infer their location. Neither argument is
sound.
Miller involved a federal statute that similarly
required a service provider (there, a bank) to create and
maintain customer records, and the Supreme Court expressly held
that the statute did not affect the applicability of the thirdparty doctrine. See Miller, 425 U.S. at 436, 440-44. Moreover,
the third-party doctrine does not require the government to use
the third party’s records in the same way the third party does.
Third parties maintain records in the ordinary course of their
own business.
See Smith, 442 U.S. at 744.
That business is
usually not crime-fighting.
See, e.g., id.
Thus, law
enforcement will almost always use the accessed information for
a different purpose and in a different way than the third party.
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Here, as in Smith, Defendants unquestionably “exposed” the
information at issue to the phone company’s “equipment in the
ordinary course of business.”
received
a
activities
call,
well
or
within
sent
Id.
Each time Defendants made or
or
the
received
“ordinary
a
text
course”
of
message
cell
--
phone
ownership -- Sprint/Nextel generated a record of the cell towers
used.
The CSLI that Sprint/Nextel recorded was necessary to
route Defendants’ cell phone calls and texts, just as the dialed
numbers recorded by the pen register in Smith were necessary to
route the defendant’s landline calls.
Having “exposed” the CSLI
to Sprint/Nextel, Defendants here, like the defendant in Smith,
“assumed the risk” that the phone company would disclose their
information to the government.
the
Government’s
acquisition
Id. at 744.
of
that
For these reasons,
information
(historical
CSLI) pursuant to § 2703(d) orders, rather than warrants, did
not violate the Fourth Amendment.
This
appellate
holding
court
accords
that
question before us.
has
with
that
of
considered
every
the
other
Fourth
federal
Amendment
Not one has adopted the Defendants’ theory.
Three of our sister courts have expressly held, as we do
today, that individuals do not have a reasonable expectation of
privacy in historical CSLI records that the government obtains
from cell phone service providers through a § 2703(d) order.
See
United
States
v.
Carpenter,
12
Nos.
14-1572/1805,
2016
WL
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1445183, at *4-6 (6th Cir. Apr. 13, 2016) (holding that “for the
same reasons that Smith had no expectation of privacy in the
numerical information at issue [in Smith], the defendants have
no such expectation in the [CSLI] locational information here”);
United States v. Davis, 785 F.3d 498, 511-13 (11th Cir.) (en
banc) (holding that defendant has no “objective[ly] reasonable
expectation of privacy in MetroPCS’s business records showing
the cell tower locations that wirelessly connected his calls”),
cert. denied, 136 S. Ct. 479 (2015); In re Application of U.S.
for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013)
(In re Application (Fifth Circuit)) (holding that the government
can use “[s]ection 2703(d) orders to obtain historical cell site
information” without implicating the Fourth Amendment (emphasis
omitted)).
And although the fourth of our sister courts opined
that “[a] cell phone customer has not ‘voluntarily’ shared his
location information with a cellular provider in any meaningful
way,” it held that “CSLI from cell phone calls is obtainable
under
a
§ 2703(d)
traditional
warrant.
probable
order,”
cause
which
“does
determination”
not
require
necessary
for
the
a
In re Application of U.S. for an Order Directing a
Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t,
620 F.3d 304, 313, 317 (3d Cir. 2010) (In re Application (Third
Circuit)).
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Moreover, even in the absence of binding circuit precedent,
the vast majority of federal district court judges have reached
the same conclusion. 6
inapposite
state
cases
Defendants are forced to rely on four
that
either
interpret
broader
state
constitutional provisions instead of the Fourth Amendment, or do
6
See, e.g., United States v. Wheeler, No. 15-216, 2016 WL
1048989, at *11-13 (E.D. Wis. Mar. 14, 2016) (Pepper, J.);
United States v. Chavez, No. 3:14-185, 2016 WL 740246, at *2-4
(D. Conn. Feb. 24, 2016) (Meyer, J.); United States v. Epstein,
No. 14-287, 2015 WL 1646838, at *4 (D.N.J. Apr. 14, 2015)
(Wolfson, J.); United States v. Dorsey, No. 14-328, 2015 WL
847395, at *8 (C.D. Cal. Feb. 23, 2015) (Snyder, J.); United
States v. Lang, No. 14-390, 2015 WL 327338, at *3-4 (N.D. Ill.
Jan. 23, 2015) (St. Eve, J.); United States v. Shah, No. 13-328,
2015 WL 72118, at *7-9 (E.D.N.C. Jan. 6, 2015) (Flanagan, J.);
United States v. Martinez, No. 13-3560, 2014 WL 5480686, at *3-5
(S.D. Cal. Oct. 28, 2014) (Hayes, J.); United States v. Rogers,
71 F. Supp. 3d 745, 748-50 (N.D. Ill. 2014)(Kocoras, J.); United
States v. Giddins, 57 F. Supp. 3d 481, 491-94 (D. Md. 2014)
(Quarles, J.); United States v. Banks, 52 F. Supp. 3d 1201,
1204-06 (D. Kan. 2014) (Crabtree, J.); United States v. Serrano,
No. 13-58, 2014 WL 2696569, at *6-7 (S.D.N.Y. June 10, 2014)
(Forrest, J.); United States v. Moreno-Nevarez, No. 13-0841,
2013 WL 5631017, at *1-2 (S.D. Cal. Oct. 2, 2013) (Benitez, J.);
United States v. Rigmaiden, No. 08-814, 2013 WL 1932800, at *14
(D. Ariz. May 8, 2013) (Campbell, J.); United States v. Gordon,
No. 09-153-02, 2012 WL 8499876, at *2 (D.D.C. Feb. 6, 2012)
(Urbina, J.); United States v. Benford, No. 09-86, 2010 WL
1266507, at *2-3 (N.D. Ind. Mar. 26, 2010) (Moody, J.); In re
Applications of U.S. for Orders Pursuant to Title 18, U.S. Code
Section 2703(d), 509 F. Supp. 2d 76, 79-82 (D. Mass. 2007)
(Stearns, J.). But see In re Application for Tel. Info. Needed
for a Criminal Investigation, 119 F. Supp. 3d 1011, 1024 (N.D.
Cal. 2015) (Koh, J.); In re Application of U.S. for an Order
Authorizing Release of Historical Cell-Site Info., 809 F. Supp.
2d 113, 120-27 (E.D.N.Y. 2011) (Garaufis, J.).
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not consider historical CSLI records, or both. 7
In sum, the
Defendants’ preferred holding lacks support from all relevant
authority and would place us in conflict with the Supreme Court
and
every
other
federal
appellate
court
to
consider
the
question.
II.
Despite the lack of support for their position, Defendants
insist that the third-party doctrine does not apply here.
They
argue that “[a] cell phone user does not even possess the CSLI
to voluntarily convey,” and that even assuming users do convey
such information, “revealing this information is compelled, not
7
Three of the state cases interpret broader state
constitutional protections than the Fourth Amendment.
See
Commonwealth v. Augustine, 4 N.E.3d 846, 858 (Mass. 2014)
(finding “no need to wade into the[] Fourth Amendment waters”
when the court could rely on article 14 of the Massachusetts
Declaration of Rights); State v. Earls, 70 A.3d 630, 641-42
(N.J. 2013) (explaining that New Jersey has “departed” from
Smith and Miller and does not recognize the third-party
doctrine); People v. Weaver, 909 N.E.2d 1195, 1201-02 (N.Y.
2009) (“[W]e premise our ruling on our State Constitution
alone.”).
In
addition
to
interpreting
only
the
state
constitution, the third case dealt with direct GPS surveillance
by police, not CSLI records procured from a phone company.
Weaver, 909 N.E.2d at 1201-02.
And the court in the fourth
state case repeatedly pointed out that it was not considering
“historical cell site location records” -- like those at issue
here -- but “real time cell site location information,” which
had been obtained not through a § 2703(d) order, but under an
order that had authorized only a “pen register” and “trap and
trace device.” Tracey v. State, 152 So.3d 504, 506-08, 515-16,
526 (Fla. 2014).
15
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voluntary.” 8
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Defendants’ En Banc Br. at 10-11.
These arguments
misapprehend the nature of CSLI, improperly attempt to redefine
the third-party doctrine, and rest on a long-rejected factual
argument
and
the
constitutional
protection
afforded
a
communication’s content.
A.
Defendants maintain that cell phone users do not convey
CSLI to phone providers, voluntarily or otherwise.
that contention.
We reject
With respect to the nature of CSLI, there can
be little question that cell phone users “convey” CSLI to their
service providers.
After all, if they do not, then who does?
Perhaps Defendants believe that because a service provider
generates a record of CSLI, the provider just conveys CSLI to
itself.
But before the provider can create such a record, it
must receive information indicating that a cell phone user is
relying on a particular cell tower.
that
information
when
a
cell
The provider only receives
phone
user’s
phone
signals with the nearest available cell tower.
8
exchanges
A cell phone
Defendants also emphasize the “highly private” nature of
location information.
Defendants’ En Banc Br. at 13.
But to
the extent they do so to argue that the third-party doctrine
does not apply to CSLI, they are mistaken.
The third-party
doctrine clearly covers information that is also considered
“highly private,” like financial records, Miller, 425 U.S. at
441-43, phone records, Smith, 442 U.S. at 743-745, and secrets
shared with confidants, United States v. White, 401 U.S. 745,
749 (1971).
16
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user therefore “conveys” the location of the cell towers his
phone
connects
with
to
his
provider
whenever
he
uses
the
provider’s network.
There is similarly little question that cell phone users
convey
CSLI
Davis,
785
to
their
F.3d
at
service
512
providers
n.12
(“Cell
“voluntarily.”
phone
users
See
voluntarily
convey cell tower location information to telephone companies in
the
course
phones.”).
of
making
and
receiving
calls
on
their
cell
This is so, as the Fifth Circuit explained, even
though a cell phone user “does not directly inform his service
provider of the location of the nearest cell phone tower.”
re
Application
(Fifth
Circuit),
724
F.3d
at
614;
see
In
also
Carpenter, 2016 WL 1445183, at *5.
Logic
purchases
expects
compels
a
the
cell
this
phone
provider
conclusion.
and
will,
chooses
at
a
incoming calls and text messages.
When
a
an
service
minimum,
route
individual
provider,
he
outgoing
and
As most cell phone users know
all too well, proximity to a cell tower is necessary to complete
these tasks.
Anyone who has stepped outside to “get a signal,”
or has warned a caller of a potential loss of service before
entering an elevator, understands, on some level, that location
matters.
See In re Application (Fifth Circuit), 724 F.3d at 613
(“Cell phone users recognize that, if their phone cannot pick up
17
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a signal (or ‘has no bars’), they are out of the range of their
service provider’s network of towers.”).
A cell phone user voluntarily enters an arrangement with
his service provider in which he knows that he must maintain
proximity to the provider’s cell towers in order for his phone
to function.
cellphone
See Carpenter, 2016 WL 1445183, at *5 (“[A]ny
user
who
has
seen
her
phone’s
signal
strength
fluctuate must know that, when she places or receives a call,
her phone ‘exposes’ its location to the nearest cell tower and
thus to the company that operates the tower.”).
Whenever he
expects
--
his
phone
to
work,
he
is
permitting
indeed,
requesting -- his service provider to establish a connection
between his phone and a nearby cell tower.
thus
voluntarily
conveys
the
information
A cell phone user
necessary
for
his
service provider to identify the CSLI for his calls and texts.
And
whether
. . .
the
record”
of
service
provider
actually
this
information
“does
constitutional difference.”
“elects
not
to
. . .
make
make
a
any
Smith, 442 U.S. at 745.
To be sure, some cell phone users may not recognize, in the
moment,
provider.
317.
that
they
are
“conveying”
CSLI
to
their
service
See In re Application (Third Circuit), 620 F.3d at
But the Supreme Court’s use of the word “voluntarily” in
Smith and Miller does not require contemporaneous recognition of
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every detail an individual conveys to a third party. 9
Rather,
these cases make clear that the third-party doctrine does not
apply when an individual involuntarily conveys information -- as
when the government conducts surreptitious surveillance or when
a third party steals private information.
Thus, this would be a different case if Sprint/Nextel had
misused its access to Defendants’ phones and secretly recorded,
at
the
Government’s
behest,
provision of cell service.
information
unnecessary
to
the
Defendants did not assume that risk
9
If it were otherwise, courts would frequently need to
parse business records for indicia of what an individual knew he
conveyed to a third party. For example, when a person hands his
credit card to the cashier at a grocery store, he may not pause
to consider that he is also “conveying” to his credit card
company the date and time of his purchase or the store’s street
address. But he would hardly be able to use that as an excuse
to claim an expectation of privacy if those pieces of
information appear in the credit card company’s resulting
records of the transaction.
Cf. United States v. Phibbs, 999
F.2d 1053, 1077-78 (6th Cir. 1993) (Defendant “did not have both
an actual and a justifiable privacy interest in . . . his credit
card statements.”).
Our dissenting colleagues similarly argue that the thirdparty doctrine requires specific “knowledge” on the part of the
phone user about what information is being conveyed at the time.
Because phone users usually do not “know[]” their own CSLI, the
dissent argues, they cannot convey it.
But the dissent cannot
have it both ways:
Accepting its premise as true for purposes
of argument, we fail to see how a phone user could have a
reasonable expectation of privacy in something he does not know.
Indeed, the dissent rightly questions “whether anyone could
credibly assert the infringement of a legitimate expectation of
privacy” in “numbers dialed by someone else.”
The same logic
would also apply to CSLI, which is created “by someone else” -and of which phone users, according to the dissent, are not even
“aware.”
19
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when they made calls or sent messages.
But like the defendant
in Smith, 442 U.S. at 745, Defendants here did “assume the risk”
that the phone company would make a record of the information
necessary
to
accomplish
company to perform.
the
very
tasks
they
paid
the
phone
They cannot now protest that providing this
essential information was involuntary.
B.
In
their
Defendants
efforts
attempt
to
to
avoid
redefine
the
it.
third-party
They
doctrine,
maintain
that
the
third-party doctrine does not apply to historical CSLI because a
cell
phone
user
does
location information.
not
“actively
choose[]
Defendants’ Br. at 30.
to
share”
his
Such a rule is
nowhere to be found in either Miller or Smith.
Moreover, this
purported
the
requirement
cannot
be
squared
with
myriad
of
federal cases that permit the government to acquire third-party
records, even when individuals do not “actively choose to share”
the information contained in those records.
For
example,
significance
to
the
courts
have
distinction
versus outgoing phone calls.
attached
between
no
constitutional
records
of
incoming
The technology the police used in
Smith -- a pen register -- recorded only the numbers dialed by a
suspect’s
phone.
It
did
not
information about incoming calls.
(and
could
not)
any
To capture that information,
police routinely use a “trap and trace” device.
20
record
If Defendants
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were correct that the third-party doctrine applies just when an
individual
effort
“actively
to
chooses
acquire
records
to
share”
information,
of
incoming
phone
then
calls
any
would
constitute a search protected by the Fourth Amendment.
After
all, the phone customer never “actively chooses to share” with
the phone company the numbers from incoming telephone calls.
Only the user on the other end of the line, who actually dials
the numbers, does so.
But federal courts have not required a warrant supported by
probable
routinely
cause
to
permit
obtain
the
such
government
information.
to
install
devices without demonstrating probable cause.
Rather,
“trap
and
they
trace”
See, e.g., United
States v. Reed, 575 F.3d 900, 914-17 (9th Cir. 2009); United
States v. Hallmark, 911 F.2d 399, 402 (10th Cir. 1990). 10
recently
Amendment”
we
held
when
that
police
obtaining
a
“did
not
violate
defendant’s
And
the
Fourth
“cellular
phone
records,” even though the records included “basic information
10
Our dissenting colleagues posit that perhaps records of
incoming calls have just not been challenged in court.
They
have been.
See, e.g., In re Application of F.B.I., No. BR 1401, 2014 WL 5463097, at *4 (Foreign Intel. Surv. Ct. Mar. 20,
2014) (listing courts that “have relied on Smith in concluding
that the Fourth Amendment does not apply to . . . incoming
calls”); Reed, 575 F.3d at 914 (noting that there is “no Fourth
Amendment expectation of privacy” in “call origination” data);
Sun Kin Chan v. State, 78 Md. App. 287, 300-01(Md. App. 1989)
(“There is no constitutional distinction between the questions
of 1) whom you call and 2) who calls you.”).
21
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regarding
Filed: 05/31/2016
incoming
and
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outgoing
calls
on
that
phone
line.”
United States v. Clenney, 631 F.3d 658, 666-67 (4th Cir. 2011)
(emphasis added). 11
Moreover, outside the context of phone records, we have
held that third-party information relating to the sending and
routing
of
electronic
Amendment protection.
(4th Cir. 2010).
communications
does
not
receive
Fourth
United States v. Bynum, 604 F.3d 161, 164
In Bynum, we explained that it “would not be
objectively reasonable” for a defendant to expect privacy in his
phone
and
Internet
subscriber
records,
including
“his
email address, telephone number, and physical address.”
name,
Id.
Although we had no occasion in Bynum to consider whether an
individual
has
a
protected
privacy
interest
in
his
Internet
Protocol (IP) address, id. at 164 n.2, several of our sister
circuits
have
concluded
that
no
such
interest
exists.
See
United States v. Suing, 712 F.3d 1209, 1213 (8th Cir. 2013);
United States v. Christie, 624 F.3d 558, 574 (3d Cir. 2010).
11
Nor has this court ever suggested that other information
typically contained in phone records -- the date, time, and
duration of each call, for example -- merits constitutional
protection.
Yet a phone customer never “actively chooses to
share” this information either.
Rather, this information is
passively generated and recorded by the phone company without
overt intervention that might be detected by the target user.
If individuals “voluntarily convey,” all of this information to
their phone companies, we see no basis for drawing the line at
the CSLI at issue here. We note that this case deals with only
2010- and 2011-era historical CSLI, generated by texts and phone
calls made and received by a cell phone.
22
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Similarly,
the
Ninth
Pg: 23 of 66
Circuit
has
held
that
“e-mail
and
Internet users have no expectation of privacy in . . . the IP
addresses
of
the
websites
they
visit.”
United
Forrester, 512 F.3d 500, 510 (9th Cir. 2008).
court
also
held
that
there
is
no
States
v.
The Forrester
reasonable
expectation
of
privacy in either the to/from addresses of a user’s emails or
the “total amount of data transmitted to or from [a user’s]
account.”
Id. at 510-11.
acquisition
of
The court found the government’s
this
information
“constitutionally
indistinguishable from the use of a pen register that the Court
approved in Smith,” in part because “e-mail and Internet users,
like the telephone users in Smith, rely on third-party equipment
in order to engage in communication.”
Id. at 510.
Of course, computer users do “actively choose to share”
some of the information discussed in the above cases, like the
“to” address in an email and the subscriber information conveyed
when
signing
up
for
Internet
service.
But
users
do
not
“actively choose to share” other pieces of information, like an
IP address or the amount of data transmitted to their account.
Internet
service
providers
automatically
generate
that
information.
See Christie, 624 F.3d at 563; cf. Forrester, 512
F.3d at 511.
Thus, the redefinition of the third-party doctrine
that Defendants advocate not only conflicts with Supreme Court
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doctrine and all the CSLI cases from our sister circuits, but is
also at odds with other established circuit precedent.
C.
In
another
Defendants
attempt
rely
on
a
to
avoid
factual
the
third-party
argument
long
doctrine,
rejected
by
the
Supreme Court and a series of cases involving the content of
communications to support their assertion that historical CSLI
is protected by the Fourth Amendment.
First,
ubiquitous
Defendants
in
our
emphasize
society
that
today
cell
that
phone
individuals
producing CSLI or “opt out of modern society.”
Banc Br. at 11.
use
is
must
so
risk
Defendants’ En
Defendants contend that such widespread use
shields CSLI from the consequences of the third-party doctrine
and
renders
any
conveyance
of
CSLI
“not
voluntary,”
for
“[l]iving off the grid . . . is not a prerequisite to enjoying
the protection of the Fourth Amendment.”
But
the
dissenting
justices
Id.
in
Miller
and
unsuccessfully advanced nearly identical concerns.
Smith
Dissenting
in Miller, Justice Brennan contended that “the disclosure by
individuals or business firms of their financial affairs to a
bank
is
not
entirely
volitional,
since
it
is
impossible
to
participate in the economic life of contemporary society without
maintaining a bank account.”
dissenting)
(internal
425 U.S. at 451 (Brennan, J.,
quotation
24
marks
and
citation
omitted).
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And dissenting in Smith, Justice Marshall warned that “unless a
person is prepared to forgo use of what for many has become a
personal
or
professional
necessity,”
i.e.,
a
telephone,
cannot help but accept the risk of surveillance.”
750 (Marshall, J., dissenting).
“he
442 U.S. at
It was, in Justice Marshall’s
view, “idle to speak of ‘assuming’ risks in contexts where, as a
practical
Id.
matter,
The
theory.
individuals
Supreme
Court
has
have
no
realistic
thus
twice
alternative.”
rejected
Defendants’
Until the Court says otherwise, these holdings bind us.
Second,
Defendants
rely
on
cases
that
afford
Fourth
Amendment protection to the content of communications to suggest
that CSLI warrants the same protection.
See Ex parte Jackson,
96 U.S. 727, 733 (1877) (content of letters and packages); Katz
v. United States, 389 U.S. 347, 353 (1967) (content of telephone
calls); United States v. Warshak, 631 F.3d 266, 287-88 (6th Cir.
2010) (content of emails).
What Defendants fail to recognize is
that for each medium of communication these cases address, there
is also a case expressly withholding Fourth Amendment protection
from
non-content
information,
addresses and routing.
i.e.,
information
involving
See Jackson, 96 U.S. at 733 (no warrant
needed to examine the outside of letters and packages); Smith,
442
U.S.
at
743-44
(no
reasonable
expectation
of
privacy
in
phone numbers dialed); Forrester, 512 F.3d at 510 (no reasonable
expectation
of
privacy
in
the
25
to/from
addresses
of
emails);
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accord Jones,
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132
S.
Ct.
at
Pg: 26 of 66
957
(Sotomayor,
J.,
concurring)
(noting the Fourth Amendment does not currently protect “phone
numbers”
disclosed
to
phone
companies
and
“e-mail
addresses”
disclosed to Internet service providers).
The
between
Supreme
the
information
Court
contents
that
the content. 12
has
of
enables
thus
forged
communications
communications
a
clear
distinction
the
non-content
and
providers
to
transmit
CSLI, which identifies the equipment used to
route calls and texts, undeniably belongs in the non-content
category.
As the Sixth Circuit recently recognized, CSLI is
non-content information because “cell-site data -- like mailing
addresses, phone numbers, and IP addresses -- are information
that facilitate personal communications, rather than part of the
content of those communications themselves.”
Carpenter, 2016 WL
1445183, at *4.
Defendants
disagree
with
this
conclusion.
They
contend
that CSLI should be treated “as content” because it “record[s] a
person’s
movements
over
a
prolonged
“serious . . . privacy concerns.”
12
period,”
implicating
Defendants’ Br. at 33.
But
In addition to being firmly grounded in the case law, the
content/non-content distinction makes good doctrinal sense. The
intended recipient of the content of communication is not the
third party who transmits it, but the person called, written,
emailed, or texted. The routing and addressing information, by
contrast, is intended for the third parties who facilitate such
transmissions.
26
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all
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routing
Filed: 05/31/2016
information
Pg: 27 of 66
“records”
some
form
sensitive activity when aggregated over time.
of
potentially
For example, a
pen register records every call a person makes and allows the
government to know precisely when he is at home and who he is
calling and credit card records track a consumer’s purchases,
including the location of the stores where he made them.
Of
course, CSLI is not identical to either of these other forms of
routing information, just as cell phones are not identical to
other modes of communication.
It blinks at reality, however, to
hold that CSLI, which contains no content, somehow constitutes a
communication of content for Fourth Amendment purposes.
Defendants’
attempts
to
blur
this
clear
distinction 13
further illustrate the extent to which their proposed holding
13
Related concerns about a general “erosion of privacy”
with respect to cell phones rest on a similar misapprehension of
this distinction.
These concerns revolve around protecting the
large quantity of information stored on modern cell phones and
on remote servers like the “cloud.” See, e.g., Davis, 785 F.3d
at 536 (Martin, J., dissenting).
If all that information were
indeed at risk of disclosure, we would share this concern. But
documents stored on phones and remote servers are protected, as
“content,” in the same way that the contents of text messages or
documents and effects stored in a rented storage unit or office
are protected.
See, e.g., United States v. Johns, 851 F.2d
1131, 1136 (9th Cir. 1988) (finding that a person renting a
storage unit has a reasonable expectation of privacy in its
contents); United States v. Speights, 557 F.2d 362, 363 (3d Cir.
1977) (finding reasonable expectation of privacy in secured
locker at place of employment).
These are clear limiting
principles. Our holding today, that the Government may acquire
with a court order, but without a warrant, non-content routing
(Continued)
27
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would be a constitutional outlier -- untenable in the abstract
and bizarre in practice.
Case in point:
Under Defendants’
theory, the Government could legally obtain, without a warrant,
all data in the Sprint/Nextel records admitted into evidence
here, except the CSLI.
Fourth
Amendment
If that is so, then the line between a
“search”
and
“not
a
search”
would
be
the
literal line that, moving left to right across the Sprint/Nextel
spreadsheets, separates the seventh column from the eighth.
The
records to the left of that line list the source of a call, the
number dialed, the date and time of the call, and the call’s
duration -triggering
all
Fourth
of
which
the
Amendment
government
protection.
can
acquire
without
The
records
to
the
right of that line list the cell phone towers used at the start
and
end
of
each
call
--
information
protected by the Fourth Amendment.
Defendants’
contend
is
Constitutional distinctions
are made of sturdier stuff.
III.
Technology
has
enabled
cell
phone
companies,
like
Sprint/Nextel, to collect a vast amount of information about
their customers.
The quantity of data at issue in this case --
information (including historical CSLI), does not disturb those
principles.
28
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seven
months’
30,000
calls
Filed: 05/31/2016
worth
and
of
cell
texts
for
Pg: 29 of 66
phone
each
records,
defendant
spanning
--
nearly
unquestionably
implicates weighty privacy interests.
Outrage
at
the
amount
of
information
the
Government
obtained, rather than concern for any legal principle, seems to
be at the heart of Defendants’ arguments.
Thus they repeatedly
emphasize the amount of CSLI obtained here and rely on authority
suggesting that the government can obtain a limited amount of
CSLI
without
a
warrant.
In
response,
the
panel
majority
expressly held that the government can acquire some amount of
CSLI
“before
its
inspection
Amendment search.”
Defendants
maintain,
rises
to
the
level
Graham, 796 F.3d at 350 n.8.
every
bit
of
CSLI
has
the
of
a
Fourth
But, if as
potential
to
“show when a particular individual is home,” and no CSLI is
voluntarily conveyed, Defendants’ Br. at 19-20, then why would
only
large
quantities
of
CSLI
be
protected
by
the
Fourth
Amendment? 14
Defendants’ answer appears to rest on a misunderstanding of
the analysis embraced in the two concurring opinions in Jones.
There, the concurring justices recognized a line between “short14
The lack of a bright line between permissible and
impermissible amounts of CSLI also stands at odds with the
Supreme Court’s “general preference to provide clear guidance to
law
enforcement
through
categorical
rules.”
Riley
v.
California, 134 S. Ct. 2473, 2491 (2014).
29
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monitoring
of
a
Pg: 30 of 66
person’s
movements
on
public
streets,”
which would not infringe a reasonable expectation of privacy,
and “longer term GPS monitoring,” which would.
Jones, 132 S.
Ct. at 964 (Alito, J., concurring in the judgment); see also id.
at
955
(Sotomayor,
J.,
concurring).
But
Jones
involved
government surveillance of an individual, not an individual’s
voluntary
disclosure
determining
when
of
information
government
to
a
third
surveillance
party.
infringes
And
on
an
individual’s reasonable expectation of privacy requires a very
different analysis.
In considering the legality of the government surveillance
at issue in Jones, Justice Alito looked to what a hypothetical
law enforcement officer, engaged in visual surveillance, could
reasonably have learned about the defendant.
He concluded that
four weeks of GPS monitoring by the government constituted a
Fourth
Amendment
“search”
because
“society’s
expectation”
had
always been “that law enforcement agents and others would not -and indeed, in the main, simply could not -- secretly monitor
and
catalogue”
long.
Id.
an
at
964
(emphasis added).
government
using
individual’s
(Alito,
movements
J.,
in
concurring
public
in
the
for
very
judgment)
In other words, direct surveillance by the
technological
means
30
may,
at
some
point,
be
Appeal: 12-4659
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limited
by
Filed: 05/31/2016
the
Pg: 31 of 66
government’s
capacity
to
accomplish
such
surveillance by physical means. 15
However, society has no analogous expectations about the
capacity of third parties to maintain business records.
Indeed,
we expect that our banks, doctors, credit card companies, and
countless other third parties will record and keep information
about
our
relationships
with
them,
and
will
do
so
for
the
entirety of those relationships -- be it several weeks or many
years.
Third parties can even retain their records about us
after our relationships with them end; it is their prerogative,
and many business-related reasons exist for doing so.
This is
true even when, in the aggregate, these records reveal sensitive
information
similar
surveillance.
is
simply
to
what
could
be
revealed
by
direct
For this reason, Justice Alito’s concern in Jones
inapposite
to
the
third-party
doctrine
and
to
the
CSLI
at
instant case.
Here,
Defendants
issue to Sprint/Nextel.
voluntarily
disclosed
all
the
And the very act of disclosure negated
15
We note, though, that such a rule would be unprecedented
in rendering unconstitutional -- because of some later action -conduct that was undoubtedly constitutional at the time it was
undertaken.
See United States v. Sparks, 750 F. Supp. 2d 384,
392 (D. Mass. 2010), aff’d, 711 F.3d 58 (1st Cir. 2013)
(recognizing the aggregation theory as “unworkable” because
“conduct that is initially constitutionally sound could later be
deemed impermissible if it becomes part of the aggregate”).
31
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any
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reasonable
expectation
Pg: 32 of 66
of
privacy,
regardless
of
how
frequently that disclosure occurred or how long the third party
maintained records of the disclosures.
critical
facts,
attempting
to
apply
Defendants ignore these
the
same
constitutional
requirements for location information acquired directly through
GPS tracking by the government to historical CSLI disclosed to
and maintained by a third party.
We recognize the appeal -- if we were writing on a clean
slate -- in holding that individuals always have a reasonable
expectation
of
privacy
in
large
quantities
of
location
information, even if they have shared that information with a
phone company.
that option.
But the third-party doctrine does not afford us
Intrinsic to the doctrine is an assumption that
the quantity of information an individual shares with a third
party does not affect whether that individual has a reasonable
expectation of privacy.
Although third parties have access to much more information
now than they did when the Supreme Court decided Smith, the
Court was certainly then aware of the privacy implications of
the
third-party
doctrine.
Justice
Stewart
warned
the
Smith
majority that “broadcast[ing] to the world a list of the local
or long distance numbers” a person has called could “reveal the
most intimate details of [that] person’s life.”
at 748 (Stewart, J., dissenting).
32
Smith, 442 U.S.
That is, in essence, the very
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concern
that
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Defendants
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raise.
But
the
Supreme
Court
was
unmoved by the argument then, and it is not our place to credit
it
now.
If
privacy
in
sharing
more
individuals
information
lack
they
non-private
any
share
legitimate
with
information
expectation
a
third
with
that
party,
third
of
then
party
cannot change the calculus.
Of course, in the face of rapidly advancing technology,
courts must “assure[] preservation of that degree of privacy
against government that existed when the Fourth Amendment was
adopted.”
Kyllo, 533 U.S. at 34.
The Supreme Court has long
concluded that the third-party doctrine does this.
Thus the
Court has never held that routing information, like CSLI, shared
with third parties to allow them to deliver a message or provide
a service is protected under the Fourth Amendment.
Perhaps this
is implicit acknowledgment that the privacy-erosion argument has
a flip-side: technological advances also do not give individuals
a Fourth Amendment right to conceal information that otherwise
would not have been private. 16
16
For example, the Smith Court noted that, because a phone
user who “had placed his calls through an operator . . . could
claim
no
legitimate
expectation
of
privacy”
in
routing
information
exposed
to
that
operator,
“a
different
constitutional result” did not follow simply “because the
telephone company has decided to automate.” Smith, 442 U.S. at
744-45.
Similarly here, “a different constitutional result”
does not follow because the telephone company has decided to
make its phones mobile. Cf. United States v. Skinner, 690 F.3d
(Continued)
33
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Moreover, application of the third-party doctrine does not
render privacy an unavoidable casualty of technological progress
-- Congress remains free to require greater privacy protection
if it believes that desirable.
The legislative branch is far
better positioned to respond to changes in technology than are
the courts.
See Jones, 132 S. Ct. at 964 (Alito, J., concurring
in the judgment) (“A legislative body is well situated to gauge
changing
public
attitudes,
to
draw
detailed
lines,
and
to
balance privacy and public safety in a comprehensive way.”); see
also
In
re
Application
(Fifth
Circuit),
724
F.3d
at
615
(explaining that that the proper “recourse” for those seeking
increased
privacy
is
often
“in
the
market
or
the
political
process”).
The very statute at issue here, the Stored Communications
Act (SCA), demonstrates that Congress can -- and does -- make
these judgments.
higher
burden
electronic
The SCA requires the government to meet a
when
acquiring
communication”
communication
service”
“the
contents
“a
provider
from
than
when
obtaining
of
a
of
“a
wire
or
electronic
record
.
.
.
pertaining to a subscriber . . . or customer” from the provider.
18
U.S.C.
§ 2703(a),
(c)
(emphasis
added).
It
requires
772, 778 (6th Cir. 2012) (“Law enforcement tactics must
allowed to advance with technological changes, in order
prevent criminals from circumventing the justice system.”).
34
the
be
to
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executive to obtain judicial approval, as the Government did
here,
before
acquiring
§ 2703(c), (d).
Electronic
even
non-content
information.
Id.
And the SCA is part of a broader statute, the
Communications
Privacy
Act
Congress enacted in the wake of Smith.
of
100 Stat. 1848.
1986
(ECPA),
which
See Pub. L. No. 99-508,
In the ECPA, Congress responded directly to the
holding in Smith by requiring the government to obtain a court
order
(albeit
not
one
supported
by
probable
cause)
installing a pen register or “trap and trace” device.
U.S.C. § 3121(a) (2012).
before
See 18
Although Congress could undoubtedly do
more, it has not been asleep at the switch. 17
Ultimately,
revisit
the
of
course,
third-party
the
Supreme
doctrine.
Court
Justice
may
decide
Sotomayor
to
has
suggested that the doctrine is “ill suited to the digital age,
in
which
people
reveal
a
great
17
deal
of
information
about
Indeed, Congress has been actively considering changes to
the ECPA in recent years based on advances in technology.
See
Jared P. Cole & Richard M. Thompson II, Congressional Research
Service, Stored Communications Act:
Reform of the Electronic
Communications Privacy Act (ECPA), 8-10 (2015) (describing
various proposed congressional amendments to the ECPA); Scott A.
Fraser, Making Sense of New Technologies and Old Law: A New
Proposal for Historical Cell-Site Location Jurisprudence, 52
Santa Clara L. Rev. 572, 576 (2012) (describing congressional
fact-finding hearings on possible changes to the SCA). And some
state legislatures have recently enacted warrant requirements
for state agencies acquiring historical CSLI.
See, e.g., Utah
Code Ann. § 77-23c-102 (West 2015), amended by 2016 Utah Laws
H.B. 369; N.H. Rev. Stat. Ann. § 644-A:2-A:3 (West 2015).
Legislatures manifestly can and are responding to changes in the
intersection of privacy and technology.
35
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themselves
mundane
to
Filed: 05/31/2016
third
tasks.”
concurring).
parties
Jones,
Pg: 36 of 66
in
the
course
S.
Ct.
at
132
957
of
carrying
out
(Sotomayor,
J.,
Indeed, although the Court formulated the third-
party doctrine as an articulation of the reasonable-expectationof-privacy inquiry, it increasingly feels like an exception.
per
se
rule
information
that
it
is
voluntarily
unreasonable
disclosed
to
to
expect
third
privacy
parties
unmoored from current understandings of privacy.
A
in
seems
But Justice
Sotomayor also made clear that tailoring the Fourth Amendment to
“the
digital
age”
would
require
the
“reconsider” the third-party doctrine.
Supreme
Court
itself
to
Id.
The landscape would be different “if our Fourth Amendment
jurisprudence cease[d] to treat secrecy as a prerequisite for
privacy.”
Id.
But unless and until the Supreme Court so holds,
we are bound by the contours of the third-party doctrine as
articulated by the Court.
See, e.g., Agostini v. Felton, 521
U.S. 203, 237 (1997) (reversing the Second Circuit but noting
that
it
had
correctly
applied
then-governing
law,
explaining
that “if a precedent of this Court has direct application in a
case, yet appears to rest on reasons rejected in some other line
of decisions, the Court of Appeals should follow the case which
directly
citation
controls”
(internal
omitted)).
quotation
Applying
the
marks,
alteration,
third-party
and
doctrine,
consistent with controlling precedent, we can only conclude that
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the Fourth Amendment did not protect Sprint/Nextel’s records of
Defendants’
CSLI.
Accordingly,
we
hold
that
the
Government
legally acquired those records through § 2703(d) orders.
IV.
For the reasons set forth above, we affirm in all respects
the judgment of the district court.
AFFIRMED
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WILKINSON, Circuit Judge, concurring:
I am pleased to concur in Judge Motz’s fine opinion. The
court rightly holds that obtaining historical cell site location
information (CSLI) from a third party cell phone provider is not
a search under the Fourth Amendment. Any result to the contrary
would be at odds with the Supreme Court and decisions from our
sister circuits. I write separately to emphasize my concern that
requiring probable cause and a warrant in circumstances such as
these needlessly supplants the considered efforts of Congress
with an ill-considered standard of our own.
Appellants appear to think that the Framers drafted the
Constitution with the judiciary alone in mind. I do not deny
that the judiciary has an important, indeed critical, role to
play in interpreting the Fourth Amendment. But I fear that by
effectively rewriting portions of a federal statute under the
guise of reasonableness review courts run the risk of boxing the
democratic branches out of the constitutional dialogue. For good
reason,
developing
collaborative
constitutional
enterprise
among
meaning
the
has
three
always
been
departments
a
of
government. The present case offers a perfect example of why
that is so.
I.
In
Privacy
enacting
Act
of
Title
1986,
II
of
the
popularly
38
Electronic
known
as
Communications
the
Stored
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Communications Act (SCA), 18 U.S.C. § 2701 et seq., Congress did
not
behave
in
a
flippant
or
haphazard
fashion.
Instead,
it
crafted a thorough statutory framework limiting the government’s
ability to gather wire and electronic communication data from
communications
service
providers
(here,
Sprint/Nextel).
The
SCA’s “comprehensive remedial scheme,” Kelley v. Fed. Bureau of
Investigation, 67 F. Supp. 3d 240, 271 (D.D.C. 2014), “creates a
set
of
Fourth
Amendment-like
privacy
protections
by
statute,
regulating the relationship between government investigators and
service providers in possession of users’ private information.”
Sams
v.
(quoting
Yahoo!
Orin
Inc.,
S.
713
Kerr,
F.3d
A
1175,
1179
Guide
User’s
(9th
to
Cir.
the
2013)
Stored
Communications Act, and a Legislator’s Guide to Amending It, 72
Geo. Wash. L. Rev. 1208, 1212 (2004)).
At
the
heart
of
the
SCA
lies
§
2703.
That
provision
establishes a calibrated set of procedural safeguards based on
the type and amount of information sought and the length of time
the
records
are
stored.
For
instance,
“only
pursuant
to
a
warrant,” 18 U.S.C. § 2703(a), can the government obtain the
contents of a communication that is in electronic storage with a
service
provider
for
180
days
or
less.
Alternatively,
the
government has a number of options for compelling the disclosure
of
non-content
customer
records,
or
the
contents
of
communications in electronic storage for more than 180 days:
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“obtain[] a warrant,” id. §§ 2703(b)(1)(A), (c)(1)(A), “use[] an
administrative
subpoena
§ 2703(b)(1)(B)(i),
.
.
or
.
or
trial
“obtain[]
subpoena,”
a
court
id.
order.”
Id. §§ 2703(b)(1)(B)(ii), (c)(1)(B).
Here,
the
government
secured
a
court
order
for
the
disclosure of non-content communication records (specifically,
CSLI)
pursuant
requirements
to
for
a
§ 2703(c)(1)(B).
valid
court
Congress
order
in
set
forth
§ 2703(d),
the
which
mandates that the government supply “specific and articulable
facts showing that there are reasonable grounds to believe that
the
contents
of
a
wire
or
electronic
communication,
or
the
records or other information sought, are relevant and material
to an ongoing criminal investigation.” Id. § 2703(d). In other
words,
§ 2703(d)
“is
essentially
a
reasonable
suspicion
standard.” In re U.S. for an Order Pursuant to 18 U.S.C. Section
2703(d), 707 F.3d 283, 287 (4th Cir. 2013).
I
see
no
reason
to
depart
from
Congress’s
carefully
tailored scheme. As the majority points out, the SCA in fact
exceeds
the
constitutional
floor
established
by
the
Supreme
Court, whose decisions hold that the Fourth Amendment does not
apply to information voluntarily conveyed to third parties. Ante
at 9-10; see, e.g., Smith v. Maryland, 442 U.S. 735, 743-44
(1979);
United
States
v.
Miller,
425
U.S.
435,
443
(1976).
Although appellants would insert their own impressions of the
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Fourth Amendment into § 2703(d) by way of a warrant and probable
cause requirement, that approach not only aspires to overturn
Supreme Court rulings but to scuttle the laborious efforts of
the Congress to balance privacy and law enforcement interests in
a responsible way.
II.
It has long been the case that developing constitutional
meaning
is
not
a
responsibility
that
rests
solely
on
the
shoulders of the judiciary. It has instead been “a power and
duty
shared
by
all
three
branches,
and
its
shared
nature
suggests that it ought not be fulfilled by each branch acting
independently within its sphere of authority.” Dawn E. Johnsen,
Functional Departmentalism and Nonjudicial Interpretation: Who
Determines
105,
121
Constitutional
(2004).
Meaning?,
Formulation
of
67
Law
&
Contemp.
constitutional
Probs.
guidance,
in
other words, is a collaborative enterprise, “with each branch
encouraged to recognize its own institutional limitations and to
respect the superior competencies of the others.” Id. at 120. *
*
My dissenting friend rightly lauds the function of
judicial review, see Marbury v. Madison, 5 U.S. 137, 178 (1803),
but effectively dismisses respect for Congress’s efforts as one
component of that review. See post at 65-66 n. 14. This, of
course, envisions a process where the judiciary speaks only to
itself, a curiously monologic exercise at odds with the
constitutional structure of American government.
Not to worry, says the dissent. All it is doing is
“eliminating a single line of statutory text, specifically 18
(Continued)
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This principle applies with special force where Congress
has
weighed
in
“reasonableness.”
on
the
That
Fourth
term,
of
Amendment’s
course,
requirement
not
“is
of
of
capable
precise definition or mechanical application.” Bell v. Wolfish,
441 U.S. 520, 559 (1979). Faced with a term literally crying out
for
balance
between
the
competing
interests
of
individual
privacy and societal security, it is appropriate to accord some
degree of deference to legislation weighing the utility of a
particular investigative method against the degree of intrusion
on individuals’ privacy interests. See United States v. Jones,
132 S. Ct. 945, 963-64 (2012) (Alito, J., concurring).
In
this
setting,
Congress
brings
several
cards
to
the
table. First, it enjoys a relatively greater degree of access
than courts to expert opinion generally and to the expertise of
the executive branch in particular. Trial courts, of course,
hear
expert
testimony
all
the
time,
but
they
are
to
a
considerable extent at the mercy of the parties whose witnesses
may be called to serve a narrow set of interests rather than the
interests of the public at large. Appellate amicus briefs and
U.S.C. § 2703(c)(1)(B).” Id. But “eliminating” a critical option
Congress has provided in favor of the dissent’s idea of what is
best for us is the kind of constitutional club that ends the
conversation and severely limits opportunities for legislative
reforms and responses in what is a rapidly evolving field.
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arguments are helpful to be sure, but not enough, I think, to
close the expertise gap or compensate for the large differences
in
size
between
congressional
and
judicial
staffs.
The
more
technical the issue (as the one before us surely is), the more
salient the expertise differential may prove to be. It is not
surprising, then, that “[t]hroughout our history . . . it has
been Congress that has taken the lead in . . . balanc[ing] the
need for a new investigatory technique against the undesirable
consequences
of
any
intrusion
on
constitutionally
protected
interests in privacy.” Dalia v. United States, 441 U.S. 238, 264
(1979) (Stevens, J., dissenting). That tradition is a sound one,
for
it
not
only
reflects
an
understanding
of
our
own
institutional limitations, but the value of having democratic
backing behind Fourth Amendment balancing.
Second,
legal
for
Congress
consistency.
particularized
is
often
Abandoning
and
better
positioned
Congress’s
improvised
to
comprehensive
judicial
standards
achieve
effort
invites
confusion into what has been a relatively stable area of the
law. See ante at 10-13. The SCA -- which remains “the primary
vehicle by which to address violations of privacy interests in
the communication field,” Adams v. City of Battle Creek, 250
F.3d 980, 986 (6th Cir. 2001) -- promotes uniformity by focusing
the courts’ inquiry on a prescribed set of conditions that must
be satisfied before disclosure will be compelled. See, e.g., 18
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U.S.C. § 2703(d). Detailed statutory standards have at least as
fair a chance of achieving clear guidance and consistency as
court developed rules. Congress’s aim of consistency would be
imperiled, however, if courts become willing to strike this or
that portion of the statute to accommodate what may be their
unique privacy policy views. In my judgment, uniform national
standards rather than regional variations among the courts has
merit
where
Congress
has
comprehensively
legislated
in
a
particular field.
Finally,
Congress
imparts
the
considerable
power
of
democratic legitimacy to a high stakes and highly controversial
area. The emergence of advanced communication technologies has
set off a race between criminal enterprises on the one hand and
law
enforcement
devices
--
efforts
even
as
on
they
the
abet
other.
the
Modern
communication
government’s
indigenous
tendencies to intrude upon our privacy -- also assist criminal
syndicates and terrorist cells in inflicting large-scale damage
upon
civilian
populations.
Appellants’
strict
standard
of
probable cause and a warrant even for non-content information
held
by
third
parties
thus
risks
an
imbalance
of
the
most
dangerous sort, for it allows criminals to utilize the latest in
technological
ability
of
development
law
to
enforcement
commit
to
crime
and
capitalize
hamstrings
upon
those
the
same
developments to prevent crime. The fact that the appellants in
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this case were convicted of Hobbs Act violations and brandishing
offenses
cannot
obscure
the
implications
of
their
proposed
standards for much more serious threats down the road.
In my view, striking a balance in an area rife with the
potential for mass casualty cannot leave democracy out in the
cold.
Courts
must
continue
to
play
a
vital
role
in
Fourth
Amendment interpretation, but in large matters of life and death
the people’s representatives must also play their part. See,
e.g., Donovan v. Dewey, 452 U.S. 594, 603 (1981) (Congress’s
authorization
underground
Amendment
of
warrantless
mines
in
deemed
light
of
inspections
constitutional
the
“notorious
of
surface
under
history
the
of
and
Fourth
serious
accidents” causing large loss of life in the mining industry).
It
is
naive,
I
think,
for
the
judicial
branch
to
assume
insensitivity to privacy concerns on the part of our elected
brethren. Just last year, for example, a bipartisan Congress
terminated
the
National
Security
Agency’s
collection
of
bulk
phone records. Uniting and Strengthening America by Fulfilling
Rights and Ensuring Effective Discipline Over Monitoring Act of
2015 (USA Freedom Act), Pub. L. No. 114-23, 129 Stat. 268. Other
statutes make Congress’s privacy concerns abundantly clear. See,
e.g., Privacy Act of 1974, Pub. L. No. 93-579, 88 Stat. 1896
(codified at 5 U.S.C. § 552a (2012)); Omnibus Crime Control and
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Streets
Filed: 05/31/2016
Act
of
1968,
Pg: 46 of 66
Pub. L.
No.
90-351,
82
Stat.
197
(codified as amended at 18 U.S.C. § 2510 et seq. (2012)).
It is human nature, I recognize, to want it all. But a
world of total privacy and perfect security no longer exists, if
indeed it ever did. We face a future of hard tradeoffs and
compromises,
as
life
and
privacy
come
simultaneously
under
siege. How sad, near the very inception of this journey, for
appellants
to
adopt
the
most
stringent
of
Fourth
Amendment
standards, to discard the great values of democratic compromise,
and to displace altogether the legislative role.
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WYNN, Circuit Judge, with whom FLOYD and THACKER, Circuit
Judges, join, dissenting in part and concurring in the judgment: 1
A customer buys a cell phone.
in her pocket.
“voluntarily
She turns it on and puts it
With those acts, says the majority, she has
conveyed”
an
unbounded
set
of
personal
location
data to her service provider, all of which is unprotected by the
Fourth
Amendment.
information,
Here,
amounting
to
that
included
roughly
29,000
221
days’
worth
of
location-identifying
data points for each Defendant.
The majority further claims that “Supreme Court precedent
mandates this conclusion,” that “[l]ogic compels” it.
5, 17.
Ante, at
But those contentions are difficult to square with the
array of concurring and dissenting opinions that have already
been issued by federal appellate judges on this subject. 2
1
With
In accordance with the practice of my colleague, see
United States v. Graham, 796 F.3d 332, 378 n.1 (4th Cir. 2015)
(Motz, J., dissenting in part and concurring in the judgment), I
have styled this opinion as a partial dissent.
Even though I
would affirm the Defendants’ convictions under the exclusionary
rule’s good-faith exception, I take issue with the majority’s
determination that there was no Fourth Amendment violation, a
conclusion which “will have profound consequences in future
cases in the Fourth Circuit.” Id.
2
Four other federal appellate courts have issued five
decisions considering as a matter of first impression the
applicability of the Fourth Amendment to CSLI, and those
decisions generated seven concurring or dissenting opinions.
See United States v. Carpenter, Nos. 14-1572, 14-1805, 2016 WL
1445183, at *1 (6th Cir. Apr. 13, 2016) (majority opinion); id.
at *11 (Stranch, J., concurring); United States v. Davis, 785
F.3d 498, 500 (11th Cir. 2015) (en banc) (majority opinion); id.
at 519 (W. Pryor, J., concurring); id. at 521 (Jordan, J.,
(Continued)
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respect for the differing view of my colleagues in the majority,
this is not an easy issue.
Not only that, but a close reading
of the Supreme Court’s third-party doctrine demonstrates that
cell
site
location
information
conveyed” by cell phone users.
(CSLI)
is
not
“voluntarily
It is therefore not beyond the
Fourth Amendment’s reach.
I.
A.
The third-party doctrine operates to bar Fourth Amendment
protection
only
for
information
that
has
conveyed” by an individual to a third party.
not
dispute
could it.
this
limitation,
see
ante,
at
been
“voluntarily
The majority does
10–11,
16–18,
nor
That phrase, or some slight variation of it, appears
without exception as a necessary analytical component in each of
the Supreme Court’s founding third-party doctrine cases.
Smith
concurring); id. at 524 (Rosenbaum, J., concurring); id. at 533
(Martin, J., dissenting); United States v. Davis, 754 F.3d 1205
(11th Cir.) (unanimous), vacated, reh’g en banc granted, 573 F.
App’x 925 (11th Cir. 2014); In re Application of the U.S. for
Historical Cell Site Data, 724 F.3d 600, 602 (5th Cir. 2013) (In
re Application (Fifth Circuit)) (majority opinion); id. at 615
(Dennis, J., dissenting); In re Application of U.S. for an Order
Directing a Provider of Elec. Commc’n Serv. to Disclose Records
to Gov’t, 620 F.3d 304, 305 (3d Cir. 2010) (In re Application
(Third Circuit)) (majority opinion); id. at 319 (Tashima, J.,
concurring).
The
only
unanimous
panel
held
that
the
government’s warrantless acquisition of CSLI constituted a
Fourth Amendment violation. Davis, 754 F.3d at 1215. No doubt,
when the votes are tallied, more now support the majority’s
position. But that should not decide this case.
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v. Maryland, 442 U.S. 735, 744 (1979) (“When he used his phone,
petitioner
voluntarily
telephone
company
(“[P]etitioner
information
conveyed
. . . .”
(emphasis
voluntarily
that
it
had
numerical
conveyed
added));
to
facilities
information
[the
the
at
id.
to
745
company]
recording
for
phone
. . . .”
(emphasis added)); United States v. Miller, 425 U.S. 435, 442
(1976)
(“All
statements
of
the
and
documents
deposit
obtained,
slips,
including
contain
only
financial
information
voluntarily conveyed to the banks . . . .” (emphasis added));
Hoffa v. United States, 385 U.S. 293, 302 (1966) (“Neither this
Court nor any member of it has ever expressed the view that the
Fourth Amendment protects a wrongdoer’s misplaced belief that a
person to whom he voluntarily confides his wrongdoing will not
reveal it.” (emphasis added)); Lewis v. United States, 385 U.S.
206,
212
invasion
(1966)
of
(“[This
privacy
the
case]
of
presents
a
dwelling;
no
question
the
only
of
the
statements
repeated were those that were willingly made to the agent and
the only things taken were the packets of marihuana voluntarily
transferred to him.” (emphasis added)); see also United States
v.
White,
protection
401
U.S.
where
745,
an
749
(1971)
individual
(no
Fourth
“voluntarily
Amendment
confides
his
wrongdoing” to another (quoting Hoffa, 385 U.S. at 302)).
The
Supreme
Court,
then,
has
intentionally
employed
the
“voluntary conveyance” concept in every relevant case to limit
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of
an
otherwise
Pg: 50 of 66
sweeping
Fourth Amendment protection.
per
se
rule
that
denies
It seems therefore crucial here to
ask: what, precisely, did the Court mean when it chose those
words, in the context of those cases?
Here
is
what
those
various
“voluntarily convey” information.
defendants
actually
did
to
One used his finger to dial,
one by one, the numerical digits of a telephone number.
Smith,
442 U.S. at 741 (highlighting that pen registers disclose “only
the telephone numbers that have been dialed” (quoting United
States v. N.Y. Tel. Co., 434 U.S. 159, 167 (1977))).
submitted
bearing
multiple
a
personal
date,
a
signature.
actually spoke.
checks
dollar
and
deposit
amount,
Miller,
425
a
slips—each
recipient
U.S.
at
Another
presumably
name,
442.
The
and
a
others
White, 401 U.S. at 746–47 (conversations with a
bugged government informant related to narcotics transactions);
Hoffa, 385 U.S. at 296 (statements to an associate “disclosing
endeavors
to
bribe
[jury]
members”);
Lewis,
385
U.S.
at
210
(conversations with an undercover law enforcement agent in the
course of executing a narcotics sale).
In all of these cases—the only cases that can bind us here—
“voluntary conveyance” meant at least two things.
First, it
meant that the defendant knew he was communicating particular
information.
We can easily assume Miller knew how much money he
was depositing, that Smith knew the numbers he was dialing, and
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Hoffa,
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Lewis,
and
White
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knew
about
the
misconduct
they
verbally described to another.
Second, “voluntary conveyance” meant that the defendant had
acted in some way to submit the particular information he knew.
Crucially,
there
was
an
action—depositing,
dialing,
corresponding to each piece of submitted information.
speaking—
And where
many data pieces were compiled into records—financial records in
Miller,
phone
records
in
Smith—there
was
discrete action behind each piece of data.
presumptively
a
The Court never
suggested that the simple act of signing up for a bank account,
or a phone line, was enough to willingly turn over thousands of
pages of personal data.
These two components of “voluntary conveyance”—knowledge of
particular
information
and
an
action
submitting
that
information—were thus present in every “Supreme Court precedent”
that can “mandate[] [our] conclusion” here.
Ante, at 5.
Those
features also characterize the vast majority of cases where the
third-party doctrine has been applied by other federal courts.
When a credit card holder signs a receipt that includes the
address of the vendor, the bill amount, and the time of the
transaction, she both indicates her knowledge of that particular
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information and acts to submit it. 3
Thus, courts have held that
the third-party doctrine applies to credit card records.
E.g.,
United States v. Phibbs, 999 F.2d 1053, 1077-78 (6th Cir. 1993);
see also United States v. Maturo, 982 F.2d 57, 59 (2d Cir. 1992)
(credit card records admitted as evidence); United States v.
Kragness, 830 F.2d 842, 865 (8th Cir. 1987) (same).
When
someone
types
“his
name,
email
address,
telephone
number, and physical address” into a form and then submits that
information to a service provider in order to secure internet
access, he not only has knowledge of the typed information but
has affirmatively acted to communicate it.
United States v.
Bynum, 604 F.3d 161, 164 (4th Cir. 2010).
Thus, courts have
held
that
the
third-party
doctrine
3
applies
to
subscriber
The majority argues that reading “voluntary conveyance” to
require user knowledge would require courts “frequently . . . to
parse business records [such as credit card records] for indicia
of what an individual knew he conveyed to a third party.” Ante,
at 19 n.9. That argument is a bogeyman. Courts would not need
to “parse” credit card records to determine whether the
cardholder at a grocery knew he was conveying “the date and time
of his purchase or the store’s street address,” id., any more
than the Supreme Court had to “parse” Miller’s bank records to
determine whether he knew he was conveying the date, amount, or
recipient name that appeared on the checks he himself had
endorsed.
That much was obvious from the nature of the record
and the transactions it reflected. Where user knowledge cannot
be easily ascertained in this manner, however, I would not force
an ill-fitting presumption of voluntariness in order to strip
Fourth Amendment protection from a defendant.
See Ohio v.
Robinette, 519 U.S. 33, 40 (1996) (“[V]oluntariness is a
question of fact to be determined from all the circumstances.”
(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248–49
(1973))).
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Id.; see also United States v. Perrine, 518 F.3d
1196, 1204 (10th Cir. 2008) (collecting cases).
When an internet user types a URL—which is uniquely linked
to a single IP address 4—into her web browser and hits the “Enter”
key, she knows the web address and she actively submits it.
Thus, although the law in this area is still unsettled, courts
have generally concluded that the third-party doctrine applies
to the IP addresses of visited websites.
See, e.g., United
States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008) (“Like
telephone
numbers
. . .
e-mail
to/from
addresses
and
IP
addresses are not merely passively conveyed through third party
equipment, but rather are voluntarily turned over in order to
direct the third party’s servers.”). 5
4
See United States v. Forrester, 512 F.3d 500, 510 n.5 (9th
Cir. 2008) (“Every computer or server connected to the Internet
has a unique IP address.
A website typically has only one IP
address even though it may contain hundreds or thousands of
pages.
For example, Google’s IP address is 209.85.129.104 and
the New York Times’ website’s IP address is 199.239.137.200.”).
5 One category of generally admitted third-party information
would not be “voluntarily conveyed” under my reading of that
requirement: phone records of incoming calls. See ante, at 20—
22.
Perhaps one reason such information is routinely admitted
is that it is rarely challenged by defendants, since it is
outgoing call information that tends to be incriminating, as was
the case in the sole authority from this circuit cited by the
majority. See United States v. Clenney, 631 F.3d 658, 662 (4th
Cir. 2011) (investigator “confirmed through phone records that
[defendant’s] phone number was the source of outgoing calls”).
Regardless, it is an open question whether anyone could credibly
assert the infringement of a legitimate expectation of privacy
in the numbers dialed by someone else (as one can in her
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It follows that knowledge of particular information and a
corresponding
“voluntary
act
transmitting
conveyance”
in
that
virtually
information
have
every
espousing
case
defined
or
applying the third-party doctrine, and certainly in every case
that can bind us here.
records
and
statements,
information.
phone
Those features describe traditional bank
records,
email
hotel
addresses
bills
and
and
social
airline
media
miles
profile
This is a description—not a redefinition—of the
third-party doctrine. 6
B.
The
foregoing
discussion
makes
clear
that
CSLI
is
not
“voluntarily conveyed” by a cell phone user, and therefore is
not subject to the third-party doctrine.
movements over time, see infra section II). In other words, my
view of “voluntary conveyance” may not require excluding
warrantlessly procured incoming call information.
Even if it
did, that would be a small price to pay for preserving the
substance of a constitutionally mandated limitation on the
third-party doctrine’s scope.
6 Indeed, it is the majority who has “improperly attempt[ed]
to redefine the third-party doctrine.”
Ante, at 6; see also
ante, at 16, 20.
The majority recasts the Supreme Court’s
“voluntary conveyance” language in a double negative, such that
“the third-party doctrine does not apply when an individual
involuntarily conveys information.” Ante, at 19 (first emphasis
added). The upshot of this approach is that the protections of
the Fourth Amendment are limited to situations where “the
government conducts surreptitious surveillance or when a third
party steals private information.”
Id.
While the majority
might prefer to preserve Fourth Amendment protection only for
information that is not coercively seized, that is not the
Supreme Court’s standard, and it should not be ours.
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First, consider how little a cell phone user likely knows
about his CSLI.
phone
numbers
Unlike the deposit amounts in Miller and the
in
Smith,
which
were
at
various
points
made
obvious to the user “in the ordinary course of business,” Smith,
442 U.S. at 744, there is no reason to think that a cell phone
user is aware of his CSLI, or that he is conveying it.
He does
not write it down on a piece of paper, like the dollar amount on
a deposit slip, or enter it into a device, as he does a phone
number before placing a call.
on
a
cell
phone
Nor does CSLI subsequently appear
customer’s
statement,
as
the
relevant
information did for the banking customer in Miller and the phone
caller in Smith.
See Smith, 442 U.S. at 742 (“All subscribers
realize . . . that the phone company has facilities for making
permanent records of the numbers they dial, [because] they see a
list
of
their
Consequently,
“it
. . .
is
calls
unlikely
on
their
that
cell
monthly
phone
bills.”).
customers
are
aware that their cell phone providers collect and store [CSLI].”
In re Application of U.S. for an Order Directing a Provider of
Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304,
317 (3d Cir. 2010) (In re Application (Third Circuit)).
And
even if cell phone customers have a vague awareness that their
location affects the number of “bars” on their phone, see ante,
at 18, they surely do not know which cell phone tower their call
will be routed through, a fact even the government concedes.
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Appellee’s Br. at 53 (“[T]he location of the cell phone tower
handling a customer’s call is generated internally by the phone
company and is not typically known by the customer.”).
knowledge,
the
first
component
of
“voluntary
User
conveyance,”
is
therefore essentially absent. 7
Second, consider what the cell phone user does—or does not
do—to transmit CSLI.
As a general matter, “CSLI is purely a
function and product of cellular telephone technology, created
by the provider’s system network at the time that a cellular
telephone
call
connects
to
a
cell
site.”
Augustine, 4 N.E.3d 846, 862 (Mass. 2014).
Commonwealth
v.
In some instances,
CSLI is produced when a user places an outgoing call, an action
7
The majority “fail[s] to see how a phone user could have a
reasonable expectation of privacy in something he does not
know.”
Ante, at 19 n.9.
I wonder: does the majority imagine
that Danny Kyllo knew what levels of infrared radiation emanated
from his home and were recorded with precision by the
government’s thermal imaging device? See Kyllo v. United States,
533 U.S. 27, 29–30 (2001).
The rule that one must “know” what
one can reasonably expect to keep private is new to me, and I
believe to Fourth Amendment doctrine as well.
It is also yet
another aspect of this Court’s present decision with troubling
future implications. I suppose we can also expect no privacy in
data transmitted by networked devices such as the “Fitbit”
bracelet, which “can track the steps you take in a day, calories
burned, and minutes asleep”; the “Scanadu Scout,” which can
“measure your temperature, heart rate, and hemoglobin levels”;
or the “Mimo Baby Monitor ‘onesie’ shirt,” which can “monitor
your baby's sleep habits, temperature, and breathing patterns.”
Scott R. Peppet, Regulating the Internet of Things: First Steps
Toward Managing Discrimination, Privacy, Security, and Consent,
93 Tex. L. Rev. 85, 88 (2014); see also infra note 8.
Making
knowledge requisite to privacy is inconsistent not only with
Supreme Court precedent but with our basic societal norms.
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that arguably corresponds with the generated information (even
if the user remains unaware of that information).
However, CSLI
is also generated when a phone simply receives a call, even if
the
user
does
automatically
not
answer.
generated
by
In
the
these
instances,
CSLI
service
provider’s
network,
without any user participation at all.
is
See In re Application
(Third Circuit), 620 F.3d at 317–18 (“[W]hen a cell phone user
receives
a
call,
he
hasn’t
voluntarily
exposed
anything
at
all.”). 8
8
The majority does not take seriously this idea—that
information might be automatically generated without user
involvement.
See ante, at 16 (“[T]here can be little question
that cell phone users ‘convey’ CSLI to their service providers.
After all, if they do not, then who does?”); id. (“Perhaps
Defendants believe that . . . the [service] provider just
conveys CSLI to itself.”).
But even in the era of Miller and
Smith, human beings were not the only entities capable of
collecting and conveying information.
That is also surely the
case now, and will only become increasingly relevant going
forward.
See, e.g., Neil M. Richards, The Dangers of
Surveillance, 126 Harv. L. Rev. 1934, 1940 (2013) (“The
incentives for the collection and distribution of private data
are on the rise. The past fifteen years have seen the rise of
an Internet in which personal computers and smartphones have
been the dominant personal technologies.
But the next fifteen
will likely herald the ‘Internet of Things,’ in which networked
controls, sensors, and data collectors will be increasingly
built into our appliances, cars, electric power grid, and homes,
enabling
new
conveniences
but
subjecting
more
and
more
previously unobservable activity to electronic measurement,
observation, and control.”); Peppet, supra note 7, at 88–89.
Today, the majority saddles us with a rule that does not
distinguish between information an individual himself conveys
and information that computerized devices automatically record,
generate, and transmit.
In other words, the majority’s
expansive interpretation of Miller and Smith will, with time,
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In sum, because a cell phone customer neither possesses
knowledge of his CSLI nor acts to disclose it, I agree with the
Third Circuit that he “has not ‘voluntarily’ shared his location
information with a cellular provider in any meaningful way.”
Id. at 317; accord Augustine, 4 N.E.3d at 862; Tracey v. State,
152 So. 3d 504, 525 (Fla. 2014). 9
II.
Because
CSLI
is
not
voluntarily
conveyed
to
service
providers, the third-party doctrine alone cannot resolve whether
the government here conducted a Fourth Amendment “search.”
In
other words, there must be an independent evaluation of whether
“the
government
that
society
violates
recognizes
a
as
subjective
expectation
reasonable”
by
of
acquiring
privacy
large
gather
momentum—with
effects
increasingly
destructive
of
privacy.
9 Because CSLI is not voluntarily conveyed by cell phone
users, I find it unnecessary to wade into the murky waters that
separate “content” from “non-content” information. The point of
the “content” designation, as recognized by the Supreme Court,
is that even some information that is voluntarily conveyed to
(or routed through) third parties is nevertheless protected by
the Fourth Amendment. For example, even though one voluntarily
conveys information by speaking into a public telephone
receiver,
“the
contents
of
[those]
communications”
are
protected.
Smith, 442 U.S. at 741.
The voluntarily conveyed
content contained in a letter, Ex parte Jackson, 96 U.S. 727,
733 (1877), or in the body of an e-mail, United States v.
Warshak, 631 F.3d 266, 288 (6th Cir. 2010), is protected, too.
But where the information in question was never voluntarily
conveyed in the first place, the third-party doctrine should
have no application, even if that information is deemed “noncontent.”
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amounts of CSLI.
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Kyllo v. United States, 533 U.S. 27, 33 (2001)
(citing Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan,
J., concurring)).
To answer that question, an examination is
warranted of both the quality and quantity of the information
the government here acquired.
The
government
Defendant. 10
obtained
221
days
of
CSLI
for
each
That amounted to 29,659 location data points for
Graham (an average of 134 data location points per day) and
28,410
location
data
points
location points per day).
for
Jordan
(an
average
of
129
Each piece of data revealed not only
the particular cell tower through which the relevant call was
routed,
but
also
a
particular
120-degree
“slice”—within that cell tower’s range.
sector—or
one-third
The record indicates
that the cell sites at issue in this case covered a circular
area with a radius no larger than two miles.
density
of
cell
sites
in
urban
areas
like
But given the
Baltimore,
where
Sprint/Nextel operates 79 cell sites within the city limits and
many more in Baltimore County, the relevant cell site area was
likely far more precise for much of the location data obtained.
10
This CSLI acquisition far eclipses any a federal
appellate court has previously approved. Cf. Carpenter, 2016 WL
1445183, at *3 (considering two CSLI acquisitions, for separate
defendants, spanning 88 and 127 days); Davis, 785 F.3d at 515
(CSLI acquisition spanning 67 days); In re Application (Fifth
Circuit), 724 F.3d at 608 n.9 (CSLI acquisition spanning 60
days).
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The records reveal extensive details about Defendants’ locations
and
movements
throughout
the
seven
months-long
period.
For
Graham, over two thousand calls were initiated and terminated in
different
cell
site
sectors,
indicating
movement
call.
Some days offer particularly telling data.
during
one
38-hour
period
in
October
2010,
during
the
For example,
Graham
made
and
received 209 calls located in 55 different cell site sectors.
In
United
Supreme
States
Court
v.
Jones,
unanimously
132
held
S.
that
Ct.
945
the
(2012),
the
government’s
installation of a GPS device on a suspect’s vehicle and its use
of that device to track the vehicle’s movements over a 28-day
period violated the Fourth Amendment.
See id. at 949, 954; id.
at 964 (Alito, J., concurring in the judgment).
the
Court
agreed
investigations
privacy.”
of
that
most
“longer
offenses
term
impinges
A majority of
GPS
monitoring
in
on
expectations
of
Id. at 955 (Sotomayor, J., concurring); id. at 964
(Alito, J., concurring in the judgment). 11
That conclusion was
rooted in concerns about the government’s ability to capture
data
describing
an
individual’s
11
movements
and
aggregate
that
That is, five Justices agreed that longer-term location
monitoring could violate an individual’s reasonable expectation
of privacy.
Although the majority opinion was grounded in a
trespass-based rationale, see id. at 949, it made clear that
“[s]ituations involving merely the transmission of electronic
signals without trespass would remain subject to [reasonable
expectation of privacy] analysis,” id. at 953.
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data “to ascertain, more or less at will,” private information
about
an
individual,
such
as
her
beliefs, sexual habits, and so on.”
concurring).
“political
and
religious
Id. at 956 (Sotomayor, J.,
While the Justices left it an open question how
long location surveillance could occur before triggering Fourth
Amendment protection, Justice Alito clarified that “the line was
surely crossed before the 4–week mark.”
Id. at 964.
Here, we confront a locational data set that is on the
whole
more
Admittedly,
invasive
the
CSLI
than
the
acquired
one
here,
considered
which
in
could
Jones.
trace
an
individual to a neighborhood even if not to a specific address,
was less precise than the GPS tracking information in Jones.
“But
precision
significance.”
is
not
the
only
variable
with
legal
United States v. Carpenter, Nos. 14-1572, 14-
1805, 2016 WL 1445183, at *12 (6th Cir. Apr. 13, 2016) (Stranch,
J., concurring).
Quantity matters, too.
And in my view, the
sheer volume of data the government acquired here decides this
case. 12
12
The majority wonders “why . . . only large quantities of
CSLI [would] be protected by the Fourth Amendment.”
Ante, at
29. That is a fair question to ask of Defendants, who maintain
that even smaller amounts of CSLI can be used to peer “into the
home.”
Appellants’ Br. at 20.
In my view, however, the CSLI
utilized
here
was
not
precise
enough
to
implicate
an
individual’s privacy interest in the home’s interior.
See
United
States
v.
Karo,
468
U.S.
705,
714–16
(1984).
Consequently, I consider the main privacy expectation infringed
(Continued)
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the
Supreme
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Court
deemed
the
government’s
collection of 28 days of location data unconstitutional, the
data
challenged
here
spans
221
days—nearly
surveillance period evaluated in Jones.
eight
times
the
The Eleventh Circuit
concluded that a 67-day set of CSLI could “[w]ithout question
. . . when closely analyzed, reveal certain patterns with regard
to [the defendant’s] physical location in the general vicinity
of his home, work, and indeed the robbery locations.”
United
States v. Davis, 785 F.3d 498, 516 (11th Cir. 2015) (en banc).
I have little trouble concluding that the close analysis of a
221-day CSLI set would reveal much more, potentially “enabl[ing]
the
Government
individual’s]
and
so
on.”
to
ascertain,
political
and
Jones,
132
more
religious
S.
Ct.
or
less
beliefs,
at
956
at
will,
sexual
[an
habits,
(Sotomayor,
J.,
concurring).
here to be in Defendants’ movements over an extended period of
time, which necessarily requires examining the quantity of data
obtained. Furthermore, I agree that “[i]ntrinsic to the [thirdparty]
doctrine
is
an
assumption
that
the
quantity
of
information an individual shares . . . does not affect whether
that individual has a reasonable expectation of privacy.” Ante,
at 32.
That is, in part, why the majority’s holding is so
troublingly broad.
See infra section III.
But having
determined that CSLI is not voluntarily conveyed, and thus that
the third-party doctrine does not decide this case, I must
evaluate separately whether a reasonable expectation of privacy
has been infringed.
Because the basis for my decision is
extrinsic to the third-party doctrine, it is natural that I
would not be bound by an “intrinsic . . . assumption” of that
doctrine.
62
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By
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acquiring
vast
Pg: 63 of 66
quantities
of
Defendants’
location
information, spanning months, without Defendants’ consent, the
government
and
infringed
thereby
engaged
their
reasonable
in
search.
a
expectations
Because
that
of
privacy
search
was
warrantless, it violated the Fourth Amendment. 13
III.
Even more disquieting to me than the result the majority
has reached today is the path it has chosen to reach it.
The
majority
does
not
decide,
for
instance,
as
did
the
Third Circuit, that the CSLI employed here was too imprecise or
too discontinuous to infringe Defendants’ privacy.
Application (Third Circuit), 620 F.3d at 312–13.
See In re
That narrower
holding would have allowed this Court to grapple, in the future,
with the effect of rapidly changing phone technology, like the
increasing “proliferation of smaller and smaller [cell sites]
such as microcells, picocells, and femtocells—which cover a very
specific area, such as one floor of a building, the waiting room
of an office, or a single home,” In re Application for Tel.
Info. Needed for a Criminal Investigation, 119 F. Supp. 3d 1011,
13
“[A]s a general matter, warrantless searches ‘are per se
unreasonable under the Fourth Amendment . . . .’”
City of
Ontario, Cal. v. Quon, 560 U.S. 746, 760 (2010) (quoting Katz,
389 U.S. at 357).
In my view, none of the “few specifically
established and well-delineated exceptions” to that rule apply
here. Id.
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1023 (N.D. Cal. 2015), or the advent of smartphone “pinging,”
whereby location data can be generated almost continuously, see,
e.g.,
In
re
Application
of
U.S.
for
an
Order
Authorizing
Disclosure of Location Info. of a Specified Wireless Tel., 849
F.
Supp.
concedes
2d
526,
what
534
(D.
follows
Md.
2011).
unavoidably
Rather,
from
its
the
majority
holding:
“the
applicability of the Fourth Amendment [does not] hinge[] on the
precision of CSLI,” ante, at 9 n.3, or on its quantity, ante, at
32.
The
Supreme
Court
has
cautioned
that
“[w]hile
the
technology used in the present case [may be] relatively crude,
the
rule
we
adopt
must
take
account
of
more
sophisticated
systems that are already in use or in development.”
U.S. at 36.
Kyllo, 533
Suppose the same case arises in two years, now
featuring months of GPS-pinpointed location data, down to the
second.
Apply the majority’s rule.
Same result.
Neither does the majority hold, as the Eleventh Circuit did
in the alternative, that the court order required by 18 U.S.C.
§ 2703(d), though less than a warrant backed by probable cause,
nevertheless
“touchstone.”
(Jordan,
J.,
preserved
a
location
data
satisfied
the
Fourth
Amendment’s
reasonableness
See Davis, 785 F.3d at 516–18; id. at 521–24
concurring).
modicum
at
of
issue
That
Fourth
here,
holding
would
Amendment
requiring
an
have
at
protection
evaluation
least
for
the
of
the
relevant statutory provision that “assess[es], on the one hand,
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the degree to which [the search] intrudes upon an individual's
privacy and, on the other, the degree to which it is needed for
the promotion of legitimate governmental interests.”
Id. at 517
(quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)).
that
were
assurances
the
Court’s
holding,
that
“Congress
. . .
then
has
the
not
majority’s
been
asleep
If
token
at
the
switch,” ante, at 35, and my concurring colleague’s laudatory
musings about Congress’s “striking a balance in an area rife
with the potential for mass casualty,” ante, at 45, might do
more than salve our judicial consciences: they would actually be
doctrinally relevant. 14
But as it is, Congress could repeal the
14
My concurring colleague joins the majority based on his
“fear that by effectively rewriting portions of a federal
statute under the guise of reasonableness review courts run the
risk of boxing the democratic branches out of the constitutional
dialogue.” Ante, at 38. If that is truly the grounds for his
concurrence, I hope my friend understands that the majority’s
opinion today will be the last word spoken in that “dialogue.”
It is a conversation ender.
Following today’s decision, the
judiciary will have absolutely no role in articulating what
protections
the
Fourth
Amendment
requires
for
private
information that is not either directly gathered by the
government or secretively stolen by third parties. We have thus
avoided “boxing out” the other branches, but only at the cost of
boxing out ourselves.
So much for a “collaborative enterprise
among the three departments of government.”
Ante, at 38.
By
the way, the statutory “rewriting” my colleague fears would
require
eliminating
a
single
line
of
statutory
text,
specifically 18 U.S.C. § 2703(c)(1)(B).
The efficiency of that
modification is possible because Congress, as my colleague
recognizes, provided in its “carefully tailored scheme,” ante,
at 40, that the government could acquire non-content customer
information by obtaining a warrant.
18 U.S.C. § 2703(c)(1)(A).
One wonders whether Congress itself might have anticipated the
(Continued)
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SCA and the ECPA tomorrow.
Pg: 66 of 66
Apply the majority’s rule.
Same
result.
What this elucidates is the extraordinary breadth of the
majority’s decision today.
It is not bounded by the relative
precision of location data, by the frequency with which it is
collected, or by the statutory safeguards Congress has thought
it prudent to enact.
The majority’s holding, under the guise of
humble service to Supreme Court precedent, markedly advances the
frontlines of the third-party doctrine.
The Fourth Amendment,
necessarily, is in retreat.
IV.
Only time will tell whether our society will prove capable
of preserving age-old privacy protections in this increasingly
networked era.
But one thing is sure: this Court’s decision
today will do nothing to advance that effort.
I dissent.
potential for a contrary decision today.
Finally, although I
appreciate my colleague’s civics lesson on the institutional
competencies of Congress, I would remind him of one of our own:
judicial review.
See Marbury v. Madison, 5 U.S. 137, 178
(1803).
66
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