|Cell Phone Tower Records
Cell Phone tower records are in the news again. A court just allowed the Government to obtain “order for the historical cell site records of a particular cell phone owner.” FCC rules require, “the ability to locate phones within 100 meters of 67% of calls and 300 meters for 95% of calls for network based calls, and to be able to locate phones within 50 meters of 67% of calls and 150 meters of 95% of calls for hand-set based calls . The court ruled that Cell site data is a business record. Cops can get it – no problem.
Here is a Recent Radio Interview on this topic:
The Court left open these issues:
Cops seeking data from all phones that use a tower ;
Cops requesting cell site information for the recipient of a call from the cell phone specified in the order;
Cops requesting location information for the duration of the calls or when the phone is idle;
Situations where the Government surreptitiously installs spyware on a target’s phone;
Situations where the Government hijacks the phone’s GPS, with or without the service provider’s help.
Opponents of cell phone tower” tracking data relied on the 2012 United States Supreme Court case United States v. Jones, 132 S. Ct. 945 (2012), which concluded that GPS monitoring of a vehicle could constitute a search. “The ACLU contends that individuals have a reasonable expectation of privacy in their location information when they are tracked in a space, like the home, that is traditionally protected or when they are tracked for a longer period of time and in greater detail than society would expect.”
The Police contended and the Court agreed, “Where a third party collects information in the first instance for its own purposes, the Government . . . can obtain this information” The court reasoned “Under this framework, 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.”
A Texas Federal Appeals Court just ruled: “to obtain an order for the historical cell site records of a particular cell phone owner, the Government may apply to a court that has jurisdiction. And that court must grant the order if the Government seeks an order (1) to “require a provider of electronic communication service or remote computing service” (2) “to disclose a [noncontent] record or other information pertaining to a subscriber to or customer of such service” when the Government (3) meets the “specific and articulable facts” standard. If these three conditions are met, the court does not have the discretion to refuse to grant the order.8 See In re Application of the United States for an Order Pursuant to 18 U.S.C. § 2703(d), 830 F. Supp. 2d 114, 148 (E.D. Va. 2011) (“The fact that ‘only if’ creates a necessary but not sufficient condition . . . does not automatically create a gap in the statute that should be filled with judicial discretion. The Court considers it more likely that the ‘only if’ language in § 2703(d) clarifies that any conditions established by (b) and (c) are cumulative with respect to the standard set forth in paragraph (d). The default rule remains that the judicial officer ‘shall issue’ an order when the government meets its burden.”).
IN RE: APPLICATION OF THE UNITED STATES OF AMERICA FOR
HISTORICAL CELL SITE DATA
UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the Southern District of Texas
Florida v. Riley, 488 U.S. 445, 451 (1989).