Appeals Court Has No Problem With Cops Using E911 Services To Perform Warrantless, Real-Time Tracking

from the what-part-of-'stored'-do-you-fail-to-comprehend? dept

The Fifth Circuit Appeals Court says it's fine if the government uses mandated emergency services to perform real-time GPS tracking. It doesn't go so far as to affirm the constitutionality of the actions, but it achieves the same ends by voting down the appellant's request for a rehearing.

What we can glean about the issue at stake comes from the eight-page dissent [PDF] written by judges James L. Dennis and James E. Graves, two of the seven judges who voted for a rehearing. In this case, the government used the defendant's cellphone provider to engage in real-time tracking. No warrant was obtained despite the government's shoulder-surfing of incoming GPS location data.

Defendant William Wallace contends that the Government violated the Fourth Amendment by ordering his service provider to activate his phone’s “Enhanced 911” capability and to relay his GPS coordinates in real time, including while he was in his home. The panel opinion concludes that, even if the Government’s real-time tracking of Wallace’s GPS coordinates was an unconstitutional search, Wallace cannot benefit from the exclusionary rule suppression of the fruits of that search because law-enforcement officials could have reasonably relied on open-ended language in 18 U.S.C. § 2703(c), a provision of the Stored Communications Act (SCA), as authorizing their actions.

Those are the facts of the case, but as the dissenting judges point out, the SCA clearly did not anticipate this use of the law, much less explicitly approve this GPS warrant end-around utilized by law enforcement. The government relied on good faith exception arguments made in two cases -- Leon and Krull. The latter holds that officers may rely on clear statutory authorization even if the statute is later proven to be unconstitutional. (In the Krull case, the statute was struck down a day after the disputed search took place.) This seems about right as courts hardly expect officers to know the laws they're supposed to enforce, much less the ones they're supposed to follow.

But that doesn't hold here. The dissent makes it explicit: the SCA provides no basis for warrantless commandeering of a phone's GPS system to track suspects. This isn't a passive collection of existing records. This turns a phone into a tracking device at the behest of law enforcement, even when the phone's owner may have taken measures to limit the collection of GPS data. There's nothing in the SCA that says any of this is constitutional.

Unlike in Krull, here there is no legislative judgment or dialogue between the courts and the legislature as to the constitutionality of the realtime GPS surveillance at issue. Congress passed the SCA over thirty years ago. At that time there was no E911 requirement, see 61 FED. REG. 40,374, and GPS was still experimental military technology that would not begin to be in widespread civilian use until over a decade later…

Furthermore, there's a Supreme Court decision to be considered -- one that strongly hinted real-time GPS tracking requires warrants (even if the Justices didn't actually go so far as to draw a bright line).

Moreover, as has been expressed by five members of the current Supreme Court and by members of this court, there is grave doubt as to the constitutionality of the kind of warrantless, real-time GPS tracking at issue in this case. See, e.g., United States v. Jones, 565 U.S. 400, 415–18 (2012) (Sotomayor, J. concurring) [...] Thus, both the nature of the statute and the nature of the alleged constitutional violation strongly suggest that Krull does not apply here.

The dissent then returns to the SCA. The government argues the SCA should be read to include real-time GPS tracking as something covered by the "or other information" phrase in the law. Since it's not communications, the government rationalizes, there should be no warrant requirement. The dissent points out the flaw in the government's reasoning by pointing to nothing more than the name of the law invoked to perform the warrantless tracking.

This holding ignores plain language in the SCA suggesting that real-time collection of GPS tracking information is not authorized by this statute. Section 2703(c) is part of the “ Stored Communications Act.” (emphasis added). The pertinent section is entitled “ Records concerning electronic communication service or remote computing service.” § 2703(c) (emphasis added). GPS coordinates that have not yet been created and would not be created absent the Government’s intervention cannot be called “records” or “stored” communications under any commonsense understanding of those terms.

This does nothing for the appellant or anyone who resides in the district, unfortunately. Law enforcement can still turn phones into tracking devices without warrants, barring any state legislation that provides more privacy protections than this district's interpretation of the Fourth Amendment. With its refusal to rehear this case, the Fifth Circuit has granted the government the luxury of interpreting "or other records" to include compelled real-time GPS tracking.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 4th amendment, 5th circuit, e911, police, privacy, real time tracking, surveillance, warrants