Law Prof Argues Cell Location Records Shouldn't Need Warrants Because Cell Phones Have Encryption

from the towards-a-more-government-friendly-reading-of-the-4th-Amendment dept

As the Supreme Court readies itself for an important Fourth Amendment decision, the supporting briefs are beginning to trickle in. At stake is a potential redefining of the expectation of privacy under the Fourth Amendment, something that was diminished by the 1979 Supreme Court decision that created the so-called Third Party Doctrine.

In Carpenter's case, the third party records in question are something gathered by all cell phone companies: location data. The government used months of cell site location data to retrace Carpenter's movements, all without a warrant. This warrantless access turns cell phones into proxy tracking devices for the government. The government is perfectly fine with this turn of events and is asking the Supreme Court to uphold the lower court's decision.

A brief [PDF] siding with the government has been submitted by George Washington University law prof (and Volokh Conspirator) Orin Kerr. In it, Kerr makes some strange arguments.

The least weird argument is Kerr's assertion cell site location records shouldn't be covered by the Fourth Amendment because they are the equivalent of "observation in a public space." This is undoubtedly true, but it does allow the government to perform these "observations" without actually having to use its own eyeballs. Instead of tracking someone's movement through direct, in-person surveillance, the government can serve a subpoena to phone companies and use constantly-collected data to perform retrospective tracking.

Kerr goes on to serve up an analogy to buttress his assertion the Fourth Amendment should provide no protection for ostensibly "public" activities. And that's where the arguments start going off the rails.

[I]magine a world without communications networks. If Alice wants to communicate with Bob, Alice has to leave her home and travel to Bob’s house. If the police suspect that Alice and Bob are conspirators planning a crime, and they assign an officer to watch Alice’s whereabouts, the police can collect only some information without triggering the Fourth Amendment. The police cannot learn the contents of what Alice and Bob said inside Bob’s home without a warrant. On the other hand, the police can observe Alice and see what she did in public – when she left home, where she traveled, when she arrived at Bob’s house, and where they both live – without triggering the Fourth Amendment. Next imagine that Alice calls Bob on her cell phone instead of meeting him in person. Alice no longer has to travel to meet Bob. The cell phone network delivers the call from Alice to Bob, making a remote transfer that eliminates the need for a public trip. But, critically, the same information exists. What was previously the contents of the conversation in Bob’s house is now the contents of the phone call between Alice and Bob. And what was previously Alice’s publicly observable trip from her house to Bob’s house is now a record that the phone provider generated and may keep about when the call was made, to and from what numbers, and what cell towers were used to deliver it.

What's glossed over in this analogy is the existence of landlines. This middle step is instructive and its absence from Kerr's brief seems almost disingenuous. For years, criminal collaborators used landlines and payphones to converse. This is what the Third Party Doctrine is predicated on: phone records. The Supreme Court's 1979 decision forced companies to comply with (and provide technical assistance for) pen register/trap-and-trace orders. These captured numbers dialed and length of conversations. The only location of interest was already known: the residence/phone booth containing the targeted phone. If law enforcement wanted information on suspects' movements, they still needed to deploy some form of additional surveillance.

Kerr is arguing law enforcement should have access to people's public movements without having to do the actual legwork. And he starts this argument by ignoring the fact law enforcement has -- for years! -- been unable to do anything more than collect phone records sans location data. But now phone records also contain information about people's movements, and Kerr believes they should be inseparable and easily-accessible. This assertion is made despite Kerr attempting to draw a straight line from the good old days of walking from house to house directly through CSLI and email header info.

To maintain the balance of the Fourth Amendment, courts should treat the same information in the same way in both the physical and network contexts. The contents of phone calls should be protected, as they are the telephone equivalent of protected inside space. This means, in the Internet context, that the contents of e-mails, text messages, and files that users place in cloud storage should receive full Fourth Amendment protection. On the other hand, non-content records generated by network providers – the business records they generate about how they delivered the communications – should not be protected because they are the network equivalent of the publicly observable trip that is outside such protection in the physical world.

Going on from there, Kerr says the court -- along with legislators -- must maintain an "equilibrium" between expectations of privacy and lawful access. But in this case, the equilibrium must shift towards the government. Why? Because criminals use cell phones.

The ways that cell phones can facilitate crime and avoid detection counsels against creating new Fourth Amendment protections for cell phone records. Obviously, most people don’t use their phones to commit crimes. But most people don’t have their records collected by court order under the Stored Communications Act, either. The key point is that the effect of cell phone technology on the “often competitive enterprise of ferreting out crime,” Johnson v. United States, 333 U.S. 10, 14 (1948), operates as a two-way street. The ability of cell phone companies to deliver communications quickly and silently over any distance cuts both ways. It can lead to records about the delivery that helps the police, and it can aid in the commission of crime that helps wrongdoers. Both should be considered.

He's right that both should be considered. But his argument doesn't suggest both should be considered. Kerr believes the government's view should be given priority -- a view that allows for no narrowing of the Third Party Doctrine. No one should be granted a higher expectation of privacy because criminals use cell phones. That's basically the argument. And it leads directly to this argument, which isn't any better. The Third Party Doctrine should remain intact because people -- including criminals -- use encryption.

It is too early to tell how far encryption will interfere with government investigative powers. But because users generally can’t encrypt non-content records such as historical cell-site records, the collection of such records may take on a more important role in future surveillance practices. The Court should be reluctant to introduce new constitutional protections for non-content records when the existing constitutional framework for access to contents may be impeded by new encryption technology.

I'm honestly unsure what to make of that argument, which seems to imply the Court should only view the Fourth Amendment as an avenue for law enforcement access, rather than its true purpose: protecting citizens from their government. Kerr talks about maintaining a balance, but posits that relevant technological advancements should work for the government, rather than against it. If people can have encryption and little metal-and-glass rectangles that allow them to hold private, long distance conversations, then the government should have uninterrupted, warrantless access to anything the government deems to be a "third party records."

This isn't the way to maintain balance. The Fourth Amendment isn't the government's enabler. And it never has been. It was written to curb government overreach and abuse. The government has been dealing with unobservable conversations for decades now. That it can now track people without ever leaving the office may be handy, but it doesn't necessarily follow it should always be able to do this without a warrant. The Supreme Court should take a close look at the implications of allowing the status quo to remain in place. Thousands of electronic devices generate millions of third party records every day, all less than a warrant away. Ignoring these implications in favor a simplistic rehashing of a forty-year-old decision is only going to cause further difficulties down the road.

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Filed Under: 4th amendment, cell site location info, csli, encryption, location info, orin kerr, scotus, third party doctrine