By Merrin Overbeck
https://pixabay.com/photos/cell-phone-phone-cell-mobile-690192/
Currently, the average person in the United States spends over four hours a day on their cell phone.[1] Cell phones have become a vital part of most people’s lives, from sending text messages, to listening to music, to using its GPS function. However, there are serious privacy rights at issue regarding situations when government officials’ and law enforcement officers’ access this information without going through the proper procedures.
On June 22, 2018 in Carpenter v. United States, the Supreme Court of the United States ruled 5-4 that the Fourth Amendment right to protection against unreasonable searches and seizures applies to cell phone location information.[2] This location information, called cell site location information (CSLI), is gathered by cell phone service providers such as Sprint, AT&T, and Verizon. According to the Court in Carpenter, this information creates a “detailed chronicle of a person’s physical presence compiled every day, every moment over years.”[3] Because of how revealing this information can be, law enforcement officers are now required to apply for and get a search warrant from a judge or a magistrate before obtaining this information.[4] If law enforcement officers are able to legally obtain a search warrant, this information can be vital to their investigations into suspected crimes; however, if a warrant is not obtained, this information could allow law enforcement officers to unconstitutionally intrude upon individuals’ right to privacy.
In order to understand why access to this type of information is such a significant issue, it is necessary to understand that “cell phones operate-by constantly connecting to cell towers to exchange data- mak[ing] it possible for cell providers to collect information on everywhere that each phone- and by extension, each phone’s owner- has been for years in the past.”[5] This has major criminal law implications because these cell phone towers are constantly gathering information about individuals through their operational cell phones. The gathering of this information by cell phone service providers allows law enforcement officers to have access this bank of information. Access to cell site location information allows law enforcement officers to accurately determine a user’s location without necessarily requiring the phone user’s knowledge or consent.[6]
The privacy concerns caused by the gathering of cell site location information raises is worsened by programs such as Trax™, created by the technology company ZetX. This program is aimed specifically at law enforcement officers. This software “recognizes cell phone data in any format from any provider and uses it to map the cell towers, create visuals of call information, highlight callers’ habits, and even autofill search warrants.”[7] Trax™ also allows law enforcement officers to “receive real-time notification of a subject’s location via GPS.”[8]
This software essentially allows law enforcement officers to automate the organization and display of cell site location information.[9] While there are clear benefits for law enforcement investigations, there is the possible issue of access to this software when it comes to prosecutors’ obligation to turn over discovery to defense counsel.[10] While the founder of ZetX states that law enforcement officers “can send Trax™ reports to the prosecutor and the defense attorney for discovery,” there is the potential issue that defense attorneys will not typically have access to this software. Because the ZetX website requires an email associated with a law enforcement agency to log on and create an account[11], there is the issue that this software could provide a means of not having to turn over the raw data that the software uses to create its graphics to defense counsel.
Another major way that ZetX and Trax™ changes the status quo of applying for and obtaining search and arrest warrants is the company’s promotion of the use of “reverse warrants” to request identifying information for every phone that was in the vicinity of where a crime was committed at a certain time.[12] Normally, search or arrest warrant targets a known object or individual. Reverse warrants raise constitutional issues due to the fact that they “guarantee a sizable number of non-criminals will be swept up in the data haul.”[13] These warrants can raise Fourth Amendment concerns because judges deciding whether to issue these warrants will likely not be able to easily understand the true area that the warrants are requesting information for; and therefore, the search will be broader than the Fourth Amendment allows for.[14]
While it is not likely that judges will learn about this issue and fix how they approve search or arrest warrants, raising awareness of this issue is the first step so that challenges to this technology’s constitutionality can be brought forward and addressed.
[1] See Melanie Curtin, Are you on your phone too much? The average person spends this many hours on it every day, Inc.com, (Oct. 30, 2018), https://www.inc.com/melanie-curtin/are-you-on-your-phone-too-much-average-person-spends-this-many-hours-on-it-every-day.html.
[2] See Carpenter v. United States, 138 S. Ct. 2206, 2223, 201 L. Ed. 2d 507 (2018).
[3] Id. at 2220.
[4] See 18 U.S.C. §2703 (2012) (explaining that the Stored Communications Act allows government officials and law enforcement officers to obtain this information from cell phone providers).
[5] Andrew Crocker and Jennifer Lynch, Victory! Supreme Court says fourth amendment applies to cell phone tracking, Eff.org, (June 22, 2018), https://www.eff.org/deeplinks/2018/06/victory-supreme-court-says-fourth-amendment-applies-cell-phone-tracking.
[6] See V. Alexander Monteith, Cell site location information: a catalyst for change in fourth amendment jurisprudence, 27:1, Kan. J.L. & Pub. Pol’y 82, 84 (2017) (explaining that officers are able to run these searches without requiring the cell phone owner’s permission).
[7] Melanie Basich, Trax from Zetx: visual analysis, Police Mag., (Jul. 17, 2014), https://www.policemag.com/341174/trax-from-zetx-visual-analysis.
[8] Id.
[9] Id.
[10] While it is possible for defense counsel to gain access to this search, offices such as the public defender’s must specifically request that their email address be approved.
[11] See Request Trax™ Demo, ZetX, https://phonelookup.zetx.com/requestdemo
[12] See Tim Cushing, Minnesota judges spent only minutes approving warrants sweeping up thousands of cellphone users, Techdirt, (Feb. 12, 2019, 10:45 AM), https://www.techdirt.com/articles/20190211/08125241570/minnesota-judges-spent-only-minutes-approving-warrants-sweeping-up-thousands-cellphone-users.shtml; see also Aaron Mak, Close enough: police departments are using “reverse location search warrants” to force Google to hand over data on anyone near a crime scene, Slate.org, (Feb. 19, 2019, 5:55 AM), https://slate.com/technology/2019/02/reverse-location-search-warrants-google-police.html
[13] Tim Cushing, Minnesota judges spent only minutes approving warrants sweeping up thousands of cellphone users, Techdirt, (Feb. 12, 2019, 10:45 AM), https://www.techdirt.com/articles/20190211/08125241570/minnesota-judges-spent-only-minutes-approving-warrants-sweeping-up-thousands-cellphone-users.shtml
[14] See Aaron Mak, Close enough: police departments are using “reverse location search warrants” to force Google to hand over data on anyone near a crime scene, Slate.org, (Feb. 19, 2019, 5:55 AM), https://slate.com/technology/2019/02/reverse-location-search-warrants-google-police.html; see also Aaron Mak, Close enough: police departments are using “reverse location search warrants” to force Google to hand over data on anyone near a crime scene, Slate.org, (Feb. 19, 2019, 5:55 AM), https://slate.com/technology/2019/02/reverse-location-search-warrants-google-police.html