Scott Forsyth, The Daily Record Newswire
You are driving from Arizona to Tennessee on business. The government is suspicious of your activities. It wants to follow you remotely, so it obtains an order, on less than probable cause, directing your cell phone provider to ping your phone 24/7 and turn over the information about your location to the government.
Shades of 1984? You bet. Legal? Yes, in the opinion of the Sixth Circuit, United States v. Skinner,_ F.3d _, Slip Opinion 12a0262p 06 (6th Cir. 2012). The decision has upset many folks for many reasons.
You probably did not know your cell phone can be turned into a GPS device without your knowledge or consent. Mr. Skinner did not.
He was a drug runner, hauling 61 bales of marijuana from Arizona to Tennessee in a mobile home. He was carrying a pay-as-you-go cell phone given him by his boss.
The DEA learned of the phone number and the shipment from an associate of his. It obtained an order from a magistrate, pursuant to the Stored Communications Act, directing the provider of the phone’s service to activate the GPS feature in the phone and release the ping data to the DEA.
The DEA tracked Skinner for three days in real time. When he arrived in Abilene, it arrested him. The DEA did not conduct any physical surveillance of him.
Skinner moved to suppress the evidence about his travels on Fourth Amendment grounds. The DEA needed a warrant based on probable cause to track him, he alleged. The trial court and the appellate court disagreed.
The SCA does relax the probable cause requirement when the government wants a party to disclose “the contents of a wire or (other) electronic information.” Instead, the government need only recite “specific and articulable facts showing that there are reasonable grounds to believe” the contents “are relevant and material to an ongoing criminal investigation,” 18 U.S.C. § 2703(d).
However, nothing within the SCA authorizes an electronic service provider to create a record for the benefit of the government. Neither court picked up on this limitation.
Also, the courts did not demonstrate an understanding of how the GPS feature in a phone works. A cell phone does not emit a signal naturally, like a smell. Somebody has to turn it on.
This misunderstanding led the appellate court to declare the tracking of Skinner’s phone did not constitute a search. The court emphasized Skinner used the phone “to carry out a criminal act.” He “can hardly complain when the police take advantage of the inherent characteristics of (the phone) to catch” him. “The Constitution does not protect (criminals’) erroneous expectations regarding the undetectability of their modern tools.”
The attention given Skinner’s wrongdoing to justify the means employed is unusual. Traditional Fourth Amendment analysis focuses on expectations: does the person exhibit an actual (subjective) expectation of privacy and, if so, is “the expectation one that society is prepared to recognize as reasonable,” Katz v. United States, 389 U.S. 347, 361 (1967).
A key factor is the invasiveness of the government intrusion. A single call to a cell phone number turned over by a provider, to determine the owner’s whereabouts, or the release of cell phone subscriber information may be reasonable. On the other hand, the attachment of a GPS device to a car and the monitoring of the car’s movements for a “prolonged time” is not, United States v. Jones, 132 S. Ct. 945 (2012).
The appellate court distinguished Jones primarily on the grounds the DEA did not attach a GPS device to Skinner or his vehicle. Skinner countered the majority of the justices in Jones left open the possibility that an unattached GPS monitoring may be unreasonable.
In his case Skinner argued the monitoring was unreasonable, because the three-day duration was greater surveillance than what people would ordinarily experience and could not be replicated physically without the commitment of tremendous police resources.
Tracking a cell phone is more intrusive than tracking a vehicle because the phone follows the person more so than a car. The government can gather a wealth of intensely private information about the cell phone holder, “the whole of a person’s progress through the world.”
A panel of three judges decided Skinner. The defendant and many organizations, including the ACLU, have asked the full appellate court to rehear the case.
Another Court of Appeals is considering the related issue of the criteria for the release of historical cell phone location information. The SCA applies and its standard is less than probable cause. However, several courts have held the law permits a magistrate to raise the standard to probable cause. The government takes the position the Fourth Amendment does not apply, because a third party holds the historical information and the customer cannot reasonably expect the third party will keep the information private.
Hopefully the judges at both appellate courts will look beyond the fact criminals use cell phones and remember innocent people do too. People do have a reasonable expectation usage information will be kept private and this expectation should be protected in accordance with the Fourth Amendment.
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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.
