The Inconsistencies Created by U.S. v. Graham in Cell Site Location Information Law and the Possible Implications to the Integrity of the Fourth Amendment

October 27, 2015

Instagram enables users to “add a location” and Facebook allows members to “Check-In” anywhere.  The naivety of this practice easily provides law enforcement with the capacity to locate anyone, anywhere.  This practice alone reveals the vulnerabilities consumers experiencebecause of the advances in cell phone technology.  It seems the smarter the phone becomes, the easier it is to track its owner.  Not only do cell phone providers know this, so do local law enforcement and government agencies. The Fourth Circuit has taken the most pragmatic approach that still honors the integrity of the objective of the Fourth Amendment, yet the issue is still convoluted and unresolved because of a circuit split.  This voluntarily exposure consumers riskfrom having a cell phone in close proximityhas manifested into a split that could easily redefine Fourth Amendment reasonability standards.
The Fourth Circuit recently determined in United States v. Graham, that the use of cell site location information (CSLI) without a warrant constitutes an “unreasonable” search under the Fourth Amendment. The Court stated that, “We hold that the government conducts a search under the Fourth Amendment when it obtains and inspects a cell phone user’s historical CSLI for an extended period of time. Examination of a person’s historical CSLI can enable the government to trace the movements of the cell phone and its user across public and private spaces and thereby discover the private activities and personal habits of the user.”  Cell site location information and its use in criminal investigations are not only a benefit for government agencies but also a concern for the societal standards of “reasonable” privacy.  This broad issue of warrantless search and seizure has forced the Supreme Court’s hand to interpret the nuances of the Fourth Amendment as a result of technological advances, but as CSLI’s use continues to develop the standards remain unclear.
Cell site location information is the technology used by cell phone providers to determine the location of a cell phone. It is most commonly associated with tracking phone calls, but the technologyalso tracks text messages and the location of cell phones without any formal means of communication between cell phones. The information is automatically sent back to the cell towers and consequently to the cell phone provider every seven seconds. The cell sites specifically use the cell towers to determine the path and trajectory of the cell phone in a given time frame.The more urban the geographic region, the more precise the technology will operate becausethere are less cell towers in rural communities. However, the Fourth Circuit’s interpretation of the Supreme Court’s decisions in Graham in conjunction with the preceding Fifth and Eleventh Circuit Courts’ decisions, In Re: Application of the United States of America for Historical Cell Site Data and U.S. v. Davis, respectively, has given new perspective to expectations of privacy when cell phone providers become entangled with criminal investigations.
The differing Circuit opinions and their interpretations of the Fourth Amendment stem primarily from legislation that pre-dates the widespread use of cell phones. The Electronic Communications Privacy Act (“ECPA”) is the wide umbrella that acts as the government extension allowing for more access to electronic communications. Two of the three titles of the ECPA are the Stored Communications Act (“SCA”) and the Pen Registers and Trap Devices Statute, which serve as the primary authorities for law enforcement to use CSLI. These pieces of legislation provide for different standards dependent on the type of information sought by law enforcement. Because the technology has drastically changed in the past forty years, courts continue to force decisions into legislation that no longer fits considering the technological advances that have occurred.
The inconsistencies between recent cases and the enacted legislation provide a multitude of issues that have not been resolved.  Despite the growing concern of privacy law in the country, there is little protection to shield consumers from the wide range of ways the law enforcement can access location information. Charlie Dunlap, executive director of the Center on Law, Ethics, and National Security at Duke University commented, “The theory is that people don’t have a reasonable expectation of privacy if they voluntarily give information to a third party.” But this is not consistent with the Fourth Circuit’s reasoning, which concluded that

“[p]eople cannot be deemed to have volunteered to forfeit expectations of privacy by simply seeking active participation in society through use of their cell phones.

The Fifth and the Eleventh Circuits disagree on this point.
Ultimately the law is known to be slow to change, but the problem here is the delayed reaction of the courts to synchronize the law so it is succinct and easy to follow.  The outdated legislation is a problem that cannot be sorted out by one case, but the standard can and should be amended to better serve the expectation of privacy.  The Supreme Court should adopt the Fourth Circuit’sreasoning because it provides the most privacy and best articulates the original intentions of the Fourth Amendment, even though it is not necessarily on point with the SCA.   Eventually, the Supreme Court will need to address these three cases clarify the law for cell phone providers and consumers. The flexibility within the current CLSI standard is not only insufficient, but it does not provide what is guaranteed in the Constitution.