BY JEREMY H. D’AMICO — Anyone who has seen CSI knows that the government can locate the position of a person’s cell phone when a call is made. But maybe you did not know that the government has been able to use Cell Site Location Information (“CSLI”) to track the location of a cellular device without a warrant. Although controversial, the practice of using one’s CSLI to track their location has been held acceptable by some many courts under the Stored Communications Act (“SCA”). Like the SCA, Florida’s SCA counterpart allows a judge to order the disclosure of this data when “specific and articulable” facts support the reason for the disclosure. However, on September 14, 2014, in Tracey v. State, the Florida Supreme Court took the stance that obtaining the real time location of a cellular device through the use of CSLI is a search that violates the Fourth Amendment when conducted without the blessing of a warrant.
At this point you may be asking “what is CSLI?” There are a variety of ways a cell phone’s location can be traced. CSLI, whether tracked in real time or recorded as historical data, is the location information obtained when a cell user makes a phone call. When the call is made, a nearby tower receives the signal. This signal not only provides the number being called but also the location of the phone when the call was made. The precision of this calculation can vary based on signal strength and other factors. The government is then able to use the data from the service provider to trace a cell phone’s signal and track the whereabouts of a person. This is exactly what the government did without a warrant in Tracey. There, the government received information from a confidential source that Tracey was involved in drug trafficking and utilized a specific cell phone number. Based upon this information, the government received a court order to record the numbers of incoming and outgoing phone numbers pertaining to Tracey’s phone. The officers did not request nor did the order permit the use of location data associated with the recorded phone numbers.
However, the government then received a tip from an informant that Tracey would be involved in a drug transaction, and, instead of obtaining an additional court order or warrant, the officers used the location information associated with the phone numbers provided via court order to locate Tracey and follow his movements based on the calls he made to certain numbers. Using this location data, the government was able to locate Tracey on a public road in possession of over one kilogram of cocaine.
In an extremely thorough opinion addressing U.S. Supreme Court precedent as well as the holdings of lower courts, the Florida Supreme Court held that a cell phone is an effect within the meaning of the Fourth Amendment. More importantly, the Florida Supreme Court held that a person has a reasonable expectation of privacy in his location information even though the location is voluntarily transmitted to the cellular provider when a call is made. This holding creates an exception to the third-party doctrine within Fourth Amendment jurisprudence. The third-party exception held that there is no reasonable expectation of privacy in information voluntarily disclosed to a third party. In rejecting this doctrine here, the court reasoned that, “While a person may voluntarily convey personal information to a business or other entity for personal purposes, such disclosure cannot reasonably be considered to be a disclosure for all purposes to third parties not involved in that transaction.” Because Tracey did not meaningfully communicate his location to the service provider, the court held the CSLI data must be suppressed.
But just months earlier, in an opinion delivered by the Eleventh Circuit Court of Appeals, it appeared that the Eleventh Circuit held similarly. In United States v. Davis, the government relied on historical cell site location information in its closing argument to suggest to the jury that the defendant (“Davis”) was on the scene of six of seven robberies for which he was indicted. In a panel decision authored by Circuit Judge Sentelle, the court held that Davis’ historical cell site location information is “within the subscriber’s reasonable expectation of privacy.” But because the officers acted in “good faith” reliance on a court order, the Eleventh Circuit did not believe the evidence should be suppressed.
Subsequently, though, the Eleventh Circuit vacated the panel decision and an en banc rehearing of the case is scheduled for February 24, 2015. What will the Eleventh Circuit hold?
The initial Eleventh Circuit decision issued on June 11, 2014 created a circuit split with the Fifth Circuit. Although the Eleventh Circuit’s decision has been vacated and no circuit split now remains, the Florida Supreme Court’s decision in Tracey v. State discussed above clearly requires the government to obtain a warrant before tracking real-time CSLI data. This creates an interesting posture for the Eleventh Circuit’s future decision. Its opinion will either conflict with opinions from its sister circuit, such as the Fifth Circuit’s decision in In Re: Application of the United States of America For Historical Cell Site Data. Or it will conflict with the Florida Supreme Court’s decision. However, the Eleventh Circuit may have grounds to distinguish Tracey.
One distinction the Florida Supreme Court made between the Fifth Circuit and the case before it was that the Tracey v. State did not involve the use of historical CSLI but rather real-time CSLI. The Florida Supreme Court distanced itself from cases involving historical CSLI, noting that the current case pertained to real-time tracking of a person’s location. If the Eleventh Circuit finds this to be a persuasive distinction, it can simply mirror the Fifth Circuit’s decision and hold the government need not obtain a warrant for historical CSLI data.
However, holding similarly as the Fifth Circuit may create a larger problem in Fourth Amendment jurisprudence that was initially recognized by Justice Sotomayor in her concurrence in United States v. Jones. Justice Sotomayor stated that the Fourth Amendment will not provide the protections the framers envisioned unless the jurisprudence recognized a distinction between privacy and secrecy. The digital age provides a complicated landscape that the framers did not envision. Private notes, personal information, and even one’s location is consistently transmitted to a third party provider. But this does not mean that this information is meaningfully shared with those parties.
Whatever the Eleventh Circuit’s en banc decision will be, it will certainly be a large step in the development of Fourth Amendment jurisprudence in the digital age.