The Volokh Conspiracy
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Yesterday I wrote at length on United States v. Wallace, a new decision from the U.S. Court of Appeals for the 5th Circuit holding that obtaining E911 location information from a cellphone is not a search. In this post, I will argue that the 5th Circuit's reasoning can't work because it rests on a misunderstanding of the record. Under the decision's own reasoning, it seems to me, the case is either wrongly decided or at least needs a different argument to reach the same result.
Here's some background. Wallace held that accessing the E911 location information is not a search because there can be no constitutional difference between historical cell-site record collection and prospective cell-site surveillance:
We have already grappled with the constitutionality of judicial orders based on less than probable cause authorizing government access to historical cell site data. In re U.S. for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013) (hereinafter Historical Cell Site Data). . . .
We . . . conclud[ed] that the "question of who is recording an individual's information initially is key." Historical Cell Site Data, 724 F.3d at 610. "[W]hether an intrusion constitutes a search" depends "on whether it is the Government collecting the information or requiring a third party to collect and store it, or whether it is a third party, of its own accord and for its own purposes recording the information." Id. When a "third party collects information in the first instance for its own purposes," the information constitutes a business record. Id. Applying this framework, we concluded that:
"cell site information is clearly a business record. The cell service provider collects and stores historical cell site data for its own business purposes, perhaps to monitor or optimize service on its network or to accurately bill its customers for the segments of its network that they use. The Government does not require service providers to record this information or store it. The providers control what they record and how long these records are retained . . . . [T]he Government merely comes in after the fact and asks a provider to turn over records the provider has already created."
Id. at 611-12.
There is little distinction between historical and prospective cell site data. As in Historical Cell Site Data, here the government sought "the disclosure of the locations of cell site towers being accessed by [Wallace's] cell phone" as recorded in future records "captured, stored, recorded and maintained by the phone companies in the ordinary course of business." "While this information is 'prospective' in the sense that the records had not yet been created at the time the order was authorized, it is no different in substance from the historical cell site information . . . at the time it is transmitted to the government." Booker, 2013 WL 2903562, at *7. The information the government requested was, "in fact, a stored, historical record because it [was] received by the cell phone service provider and stored, if only momentarily, before being forwarded to law enforcement officials." In re U.S. for an Order for Prospective Cell Site Location Info. on a Certain Cellular Tel., 460 F. Supp. 2d 448, 459 (S.D.N.Y. 2006). We therefore conclude that like historical cell site information, prospective cell site data falls outside the purview of the Fourth Amendment.
If Wallace involved real-time access to cell-site location information, as the 5th Circuit's opinion indicates it did, then I think this result is correct.
But here's the problem. I believe the record in Wallace indicates that it is a GPS case, not a cell-site case. Wallace's holding hinges on the assumption that the government was not obtaining records directly but was instead obtaining records from a third party that had received the information in the ordinary course of business. But I don't think that happened in Wallace. Instead, the government's agent accessed the information directly, "pinging" the phone to obtain location information. In response to the ping, the phone would have turned on its GPS receiver, obtained its GPS coordinates, and sent that information to the government. The information the government received was the data collected by the GPS in the phone, not the business records from AT&T about what cell towers were connected to the phone.
Here's the suppression-hearing transcript, which I have obtained from PACER. There's no discussion of cell-site location. Instead, it's all about accessing GPS data.
The first relevant part of testimony is from the direct examination of special agent Jose Rodriguez. He received the location information from AT&T and then passed on the information to the lead investigator:
Q And what is it that you do when you say—do you go to the phone company or the service provider and give them the court order?
A Actually we have a tech unit that does that for us and we give them the order, the same one, just a copy of it and we tell them that we're going to need a ping order for this particular number, and we also give them the carrier. And from there they submit it to the carrier and then they—once all that has been taken care of and activated, we start receiving regular emails or—I think that's really the only ways were emails.
Q And when you're asking for a ping order, what does that ping—what does a ping mean?
A I'm sorry, the ping order is actually a GEO location, GPS location, just like if you were standing with your phone out trying to find directions, addresses, where you're trying to go to, similar system, the only thing is in this case it tells us exactly where whatever phone number we're looking at, where it is, and the certainty about how far away that actual location may be from where we received the GPS location.
Rodriguez then passed on AT&T's email to special agent Shawn Hallett, the lead investigator. This is from the direct examination of Hallett:
Q All right. And what was the information that you had about where that location was?
A Jose had sent me a screenshot of the GEOLocate that came in, and then he also sent me a screenshot after he had plugged those—the GPS coordinates in, then he sent me a photo of that.
Q All right. I'm going to show you what's been accepted into evidence as Government's Exhibit Number 4. Is—have you ever seen this before? Did this get sent to you?
Q All right, and who sent that to you?
A Jose Rodriguez.
Q And with this—and what type of information is on this?
A This is what is sent to us from the telephone company –
Q All right.
A—giving us the GEOLocate coordinates and the radius.
This is from the defense attorney's cross-examination:
Q Okay, so was it a ping, was it GPS –
A That's what this is, this is a ping.
Q This is a GPS location. It provides specific longitude and latitude.
A I understand that.
Here's the Government's Exhibit 4, which is the screenshot of the GEOLocate that Hallett received from Rodriguez:
Note that the data here is really precise—to a 6-meter radius—which is generally a precision that you would get with GPS. The data source, 3G-GMLC, would I believe refer to a Gateway Mobile Location Center for a 3G network.
One caveat here is that there is no testimony from AT&T about how they executed the order. As I understand things, the E911 requirement can be implemented in several different technical ways. Perhaps we can't be sure of what technology was used because AT&T never took the stand to explain that. But the government's own witnesses testified that the information was GPS data, and the exhibit seems consistent with that.
That point appears to have been somewhat lost in the briefing of the case. The government's 5th Circuit brief is here, and it refers to the data in different ways in different places. On one hand, Footnote 4 says: "'E-911' data refers to real-time, precise location data obtained through global positioning satellites (GPS)." On the other hand, the government's brief refers throughout to the information being "prospective cellular site location information." The defendant's brief is here, and it has some similar mixed notes. On one hand, it makes relatively clear on pages 5-6 that the case involved GPS data (quoting the suppression-hearing testimony of Rodriguez). On the other hand, the defense brief also refers to the information as "cell-site information," and at one point, on page 17, it contrasts that with GPS information. Perhaps it is not a surprise, then, that the 5th Circuit's opinion uses both concepts. The fact section states that "with this Ping Order, DPS obtained the approximate, real-time GPS location of Wallace's cell phone from AT&T." In the legal discussion, however, it refers to "E911 location information- or prospective cell site data."
Given that GPS technology appears to be at work here, and not cell-site location information, I would think the 5th Circuit's analysis has to be different. The analysis can't be based on the third-party doctrine, but rather should rely on the reasoning of cases such as United States v. Knotts and United States v. Karo or perhaps other principles beyond the third-party doctrine. Even if the result is the same, that would make clear that there is no split with the Florida Supreme Court's decision in Tracey, which appears to be a cell-site case and not a GPS case.
That's my tentative sense of things, at least. I'll post an update or correction if I learn more details of the case or get a better understanding of the technology.