Recently, in the case of Zanders v. Indiana, the Court of Appeals of Indiana held that police violated their suspect’s Fourth Amendment rights by acquiring, without first obtaining a warrant, cell site information identifying his whereabouts at various points (during his commission of the crimes for which he was convicted) from his cell phone provider. In ruling in this way, the court distinguished Supreme Court precedents that might seem to point in the opposite direction and also relied on the serious incursion on privacy that has become possible with the location tracking that automatically occurs when people use their cell phones. In this column, we will explore who has the better of the argument, an argument over which there is now a split in authority among the lower courts (if we include state courts).
Not a Fourth Amendment Search
In order to find that the police violated the Fourth Amendment by acquiring location information from Zanders’ cell phone provider in the absence of a warrant, the Indiana court had to deem the acquisition of this information a “search” for purposes of the Fourth Amendment. Under Katz v. United States, a search takes place when the government intrudes upon an individual’s “reasonable expectation of privacy.” In addition, under United States v. Jones, the Court maintains that physical trespasses coupled with the gathering of information will also implicate the Fourth Amendment, regardless of whether one has invaded a “reasonable expectation of privacy.” The question in Zanders was whether, under either of these tests, the collection of cell phone location history data from an individual’s cell phone provider implicates the Fourth Amendment right against unreasonable searches and seizures.
The argument for the government in this case is straightforward. In two cases, United States v. Miller and Smith v. Maryland, the U.S. Supreme Court held that when an individual voluntarily conveys personal information to a third party (such as a bank or a telephone company), the government does not perform a search by gathering that personal information from the third party. Most pertinently, in Smith, the Court said that the phone numbers that an individual dials from his telephone may lawfully be collected by the government because the individual relinquishes any privacy right in those numbers by voluntarily conveying them to the telephone company (through the act of dialing the numbers). The analogy in Zanders is that by carrying around his cell phone with him and by making calls from that cell phone, Zanders necessarily conveyed to his cell phone provider the information about his whereabouts that the government subsequently sought. Known as the “third party doctrine,” the idea is that once you give up private data to a third party, you relinquish control over that data along with any reasonable expectation that the data will remain private.
Distinguishing Miller and Smith
To depart from the seemingly clear holdings of Miller and Smith, the Indiana court made two arguments, one distinguishing these holdings and a second relying on the grave threat to privacy that a contrary holding would pose in our age of advanced technology.
To distinguish Miller and Smith, the court said that when a person uses his cell phone, he in no way—either voluntarily or involuntarily—hands over information to his cell phone provider. Instead, the process by which his provider acquires information about his phone’s location is entirely automatic, and many cell phone users are not even aware that their cell phone use entails the acquisition of such information by their providers. This is a clever argument, because it is true that when people use their landlines (as in Smith), they must dial or punch in the numbers that they are calling, thereby necessarily (and voluntarily) conveying the numbers to the telephone company, which enables the call the be connected. Likewise, in sharing information with a bank, as in Miller, people are aware that they are giving personal information to a third party. By contrast, there is no explicit conveyance of any information about one’s location when one carries around and uses a cell phone. The process is more automated in that sense than it would be if there were a button on the cellphone that said “convey location information before placing a call.”
To the extent that one wants to distinguish Miller and Smith, then, this argument does do that. The problem with the argument is that it does not quite match up with what people’s experience probably was in making phone calls at the time that Smith was decided. People dialing numbers almost certainly did not think of themselves as “telling” anyone anything about the numbers that they were calling. They instead likely thought of their act as simply an electronic means of reaching another person. They certainly could have looked into it or given it a lot of thought and arrived at the conclusion that some third party, the telephone company, must be receiving the phone numbers they are calling in order to be able to connect the calls as well as bill for those calls, but many people don’t look into such things or give them a lot of thought. Likewise, many people are aware of the fact that their cell phones act as a kind of GPS for their cell phone providers and, for that reason, some people take precautions (like powering off their cell phones) when they want to ensure that their whereabouts will remain unknown. It seems, then, that the “conveyance of information” versus “no conveyance of information” line that the Indiana court seeks to draw between the old cases and the new may not be that strong. In none of these telephone cases, after all, is anyone intentionally telling the telephone company/cell phone provider anything, any more than a person who pushes a button on an elevator intends to “tell” some third party the floor to which he is ascending. Yet the Supreme Court has seen fit to craft the third party doctrine, notwithstanding this reality.
Finally, though the court does not discuss the case of United States v. Knotts, that case also poses an obstacle to its ruling in favor of Zanders, because it holds that people lack any reasonable expectation of privacy in the public places where they appear. That case came up in the context of police using a primitive tracking device to follow a car on the public highways, a device that the Court deemed acceptable. By the same token, one could argue that Zanders lacked any reasonable expectation of privacy in the various (incriminating) locations in which he had been and which locations were automatically conveyed to his cell phone provider and then gathered by the government.
The stronger argument by the Indiana court, albeit one that seeks to move the law rather than simply affirm where it already is, is that being able to track people’s whereabouts through their cell phones is an extremely invasive capacity that ought to be considered a “search” subject to the warrant requirement, to prevent abuse by law enforcement. At this point, it is important to remember that if finding out a person’s historical locations via his cell phone provider is not deemed a “search” for Fourth Amendment purposes, then police may find out such information about anyone and everyone it pleases. Simple curiosity or a campaign of harassment could motivate police to look into where John Doe or Jane Roe frequented over the last weeks or months, and that prospect would seem undesirable from the point of view of the privacy that the Fourth Amendment protects from arbitrary intrusions.
Fortunately for the Indiana court, it was able to cite modern U.S. Supreme Court precedents for the idea that tracking people’s whereabouts invades privacy. In United States v. Jones, the Court held unconstitutional the warrantless GPS surveillance of a person’s car over a long period of time via a tracking device that police attached to the car. Though a majority of the Court relied on the trespass involved in attaching the device (a trespass that is absent in Zanders’s case), Justice Sotomayor took the opportunity to add a concurrence criticizing the third party doctrine and indicating the extremely invasive nature of GPS surveillance, quite apart from whether it began with a trespass (attaching the GPS to a vehicle) or not. Taking her sentiments and adding them to the four-vote concurrence in the judgment, which ruled explicitly on the basis of reasonable expectations of privacy, provides support for the Indiana court’s ruling in Zanders.
In addition, in a U.S. Supreme Court decision precluding the search of a cell phone as an automatic part of “search incident to arrest” doctrine, Riley v. California, the Indiana court was able to find language indicating that one reason to set the cell phone’s contents apart from other items to be searched incident to a lawful arrest is the fact that phones provide location data which can reveal very personal, private information about the individual holding the cell phone.
As a matter of precedent, then, the third party doctrine remains good law and so does the doctrine that holds that people lack a reasonable expectation of privacy in their location on the public roads. Yet the Supreme Court has given strong hints that precisely tracking people’s locations (as opposed to primitively tracking them, as was possible in Knotts) over an extended period of time does indeed invade reasonable expectations of privacy, and a majority of justices have indicated (though not all in one opinion) that a physical trespass is not a necessary component of what makes such tracking a search. It may be, then, that the Supreme Court will soon have to take a case about calling on cell phone providers to give police location records about suspects in the absence of a warrant. Until then, there will remain tension between what the doctrine literally holds at the moment and what the justices have begun to indicate about their view of privacy and what the Fourth Amendment must encompass, if privacy is to remain with us in our high-tech age.