The ruling by Judge Lynn Hughes of the Southern District of Texas last week, declaring unconstitutional a provision of the Stored Communications Act (SCA) of 1986, won’t add much to the privacy debate. In a four paragraph one-page order, Judge Hughes affirmed the Magistrate Judge’s denial of an application by the United States for a customer’s stored cellular phone communications data. Specifically, Judge Hughes found that the standards set out under the Act were “below that required by the Constitution” as a “probable cause” finding was necessary when the records the government seeks “show the date, time, called number, and location of the telephone when the call was made,” in particular, “data disclosing the location of the telephone at the time of particular calls.”
Under the “Third Party Doctrine” the Supreme Court has long held that there is no protected privacy interest in information that a customer voluntarily relinquishes to third parties. See United States v. Miller, 425 U.S. at 436 and Smith v. Maryland, 442 U. S. at 736.
Recent decisions, however, have tested the Fourth Amendment boundaries when the information sought by the government might reveal the physical location of person who is relinquishing the information to a third party. In In re Application of the United States for an Order Pursuant to 18 USC 2703(d), Judge Liam O’Grady of the Eastern District of Virginia issued a 60 page Memorandum Opinion on November 10, 2011 (the day before the one page Hughes Order) ruling that the government could obtain, under the SCA and without a probable cause tested search warrant, data from the Twitter accounts of the three individuals as part of the WikiLeaks criminal investigation. Judge O’Grady found that the petitioners had no reasonable expectation of privacy in the location of their IP addresses having voluntarily relinquished them to Twitter. Also, the Third Circuit’s opinion in In re Application for an Order to Disclose Records (Third Circuit Opinion), 620 F.3d 304 (3rd Cir. 2010), held that a Magistrate Judge could require the government to make a probable cause showing under the SCA if it was determined that the cell site location information (CSLI) sought would “resemble a tracking device” which would reveal “actual whereabouts of the subject” that reveals information about “the interior of the home.”
Certainly, the Supreme Court’s ruling in the case of United States v. Jones, argued on November 8, 2011, and expected later this term, should provide guidance as to the breadth of legitimate privacy interests relating to law enforcement’s use of global positioning technology to track the public movements of suspects. In the meantime, prosecutors and agents must weigh the law enforcement benefits of adhering to the statutory evidentiary obligations set forth in the SCA against an extra-statutory judicially mandated requirement to establish criminal activity by a probable cause standard when seeking CSLI type information relevant to a criminal investigation from third party providers. Fourth Amendment law is sure to be in flux until the Supreme Court decides Jones.