Peter A. Crusco

Carpenter v. United States, 201 L.Ed. 2d 507 (2018) decided on June 22, 2018, is probably the most important Fourth Amendment case involving new crime fighting cyber surveillance technology, that is, historical cell site location information (CSLI), to reach the high court in many years. Last December, in the spirit of the season, your writer mused in this column that Weaver's spirit, that is People v. Weaver, 12 N.Y.3d 433, 458 (2009), requiring that the government obtain a search warrant to utilize GPS location information except in rare circumstances, was discernible during the oral argument in Carpenter. The government obtained Timothy Carpenter's historical CSLI through a court order on less than probable cause pursuant to 18 U.S.C. 2703 (d) of the Stored Communication Act from defendant's cellular telephone provider cataloging defendant's movements over 127 days. The CSLI was used to fix defendant's movements and thereby corroborate witness accounts of defendant's involvement in a series of robberies.

CSLI assists in determining the general locations of a target cellular telephone, and may also aid in identifying the suspect using the phone. See also, People v. Hall, 86 A.D. 3d 450 (1^st Dept. 2011), lv den 19 N.Y. 3d 961 (2012) cert den 133 S. Ct. 1240 (2013). The CSLI technology used in Carpenter was similar to the GPS technology that was used in Weaver. For as was opined in Carpenter, “[m]uch like GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic, and effortlessly compiled.” Moreover, “…[t]he accuracy of CSLI is rapidly approaching GPS-level precision.” Now that the initial dust raised by the decision in Carpenter, requiring the government obtain a search warrant to obtain historical CSLI, has settled, we may discuss possible consequences on other crime fighting cyber surveillance tools.

Privacy and Security

Legal and policy questions are raised by evolving advancements in and access by the government to crime fighting cyber surveillance tools including what legal authorization may be required to conduct certain electronic surveillance techniques. Moreover, on the policy end, government surveillance techniques implicate competing values of great importance to all—privacy and security.” See, People v. Weaver, 12 N.Y.3d 433, 458 (2009) (dissenting opn., Read, J.) For instance, the more sophisticated warrantless GPS tracking device used by police in United States v. Jones, 565 U.S. 400 (2012)(holding warrant required for GPS evidence) to track defendant's vehicle's movements for 28 days allowed for tracking of “every movement” of that vehicle, saving scarce government physical surveillance resources while impinging on defendant's expectation of privacy under the Fourth Amendment.

Similarly, the CSLI recorded by the cellular telephone provider was accessed by the government to track Carpenter's movements. The CSLI was referred to by the court as “tireless,” “absolute” and “near perfect surveillance.” Additionally, the CSLI surveillance was referred to by Justice Anthony Kennedy in dissent as “needed, reasonable accepted, lawful and congressionally authorized…”. CSLI surveillance avoids the usual pitfalls, costs, potential disclosure concerns and other difficulties in the use of physical surveillance in major cases frequently conducted by teams of police detectives or federal agents in special operation surveillance units.

The Probable Cause Warrant Standard

The ruling in Carpenter now requires law enforcement with few exceptions to satisfy the Fourth Amendment warrant standard of “probable cause” before it may use historical CSLI in a prosecution. As a result the utility of this particular surveillance technology as a police investigative tool and been significantly diminished, as well as limiting Congress' liberty to act in the best interests of the country's citizens as a whole. Cf., Weaver, supra, at 459, Read, J., dissenting, similarly opining on the court's new requirement of a warrant for GPS monitoring technology; See also, Pennsylvania v. Rushing, 2013 PA Super 162 (2013)(warrant required to track defendant's cell phone under court's interpretation of state constitution); Commonwealth v. Augustine, 467 Mass 230 (2014)(holding that the state generally must obtain a warrant before acquiring a person's historical CSLI records).

Third-Party Doctrine Limitation

Moreover, in Carpenter, the third party doctrine articulated in Smith v. Maryland, 442 U.S. 735, 743-744 (1979), was cited by the government to rebut the Fourth Amendment issue raised by the defendant. Nevertheless, the Supreme Court refused to extend the doctrine to what it described as the qualitatively different category of cell-site records. Id. at 521; Cf., State v. Earls, 214 N.J. 564, 587 (2013)(rejecting the third-party doctrine). The Court specifically determined that, “[w]hether the government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.” Thus, the CSLI obtained from Carpenter's wireless carriers was the product of a search requiring a warrant and a showing of probable cause.

Moreover, the Supreme Court found that “CSLI is an entirely different species of business record—something that implicates basic Fourth Amendment concerns about arbitrary government power much more directly than corporate tax or payroll ledgers.” The court further declared that, “[w]hen confronting new concerns wrought by digital technology, this court has been careful not to uncritically extend existing precedents.” It then stated, “[w]e hold only that a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party.”

Scope of the Carpenter Adjustment

The U.S. Supreme Court in Carpenter expressly limited the scope of its decision, stating that its decision “is a narrow one,” deciding no more than the case before it. It stated that it did not express a view on matters not before it such as real-time CSLI, or “tower dumps,” or disturb the third-party application of Smith and Miller, or question conventional surveillance techniques and tools such as security cameras, or “other business records that might incidentally reveal location information, or other collection techniques involving foreign affairs or national security, and quoting Justice Felix Frankfurther in Northwest Airlines v. Minnesota, 322 U.S. 292 300 (1944) opined that it must “tread carefully…to ensure that we do not 'embarrass the future.' ”

Nevertheless, the court also cited Justice Louis Brandeis' dissent in Olmstead v. United States, 277 U.S. 438, 473-474 (1928), in stating that it was obligated “as subtler and more far-reaching means of invading privacy have become available to the government—to ensure that the progress of science does not erode Fourth Amendment protections.”

Cyber Surveillance Tools and Cell Dumps

What does Carpenter mean for other crime fighting cyber surveillance tools? It is clear that with respect to the third-party doctrine a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party. On the other hand, let's apply the Carpenter decision to one frequently used crime fighting cyber tool—the cell tower dump usually obtained by the government through a court order served on the cell phone providers on less than probable cause through section 2703 (d) of the Stored Communications Act, as was done by the government for the historical CSLI in Carpenter. A cell tower dump is usually utilized by law enforcement to assist in the identification of cellular telephones in use near a specified location on a certain date and time to ultimately identify/ corroborate the identification of a suspect involved in the crime. See, e.g., In Re United States, 2017 U.S. Dist. LEXIS 204967 (E.D. Michigan, Dec. 12, 2017). This is to be contrasted with CSLI, or call detail records for a particular identified cellular telephone.

In a cell tower dump, the specified location is identified by the cell towers in the area of the location and the suspect phone is usually unknown and to be determined by police analyzing dump and other relevant conventional information compiled from the investigation. The cell tower dump information results in the identification through cellular service providers' records of all the cellular telephones which were somewhere in the vicinity of the particular cell tower on the date and time in issue, resulting in data that may generate additional leads or evidence depending on the scope of the matter under investigation.

The Carpenter court's concern for overly comprehensive tracking by police in violation of the Fourth Amendment voiced in Carpenter as well as in Jones is inapplicable to cell tower dumps that usually are limited to a thirty-minute time period on a specific date in a specific location identified by the towers. The surveillance employed is not indiscriminate, infinite in nature, or pervasive, rather it is specific and finite, limited to a specific date, time and place. Thus such relatively short-term monitoring of a person's movements on public streets accords with expectations of privacy that our society has recognized as reasonable.

Conclusion

As criminals become more sophisticated utilizing the full array of today's publicly available technology, law enforcement officials, in exercising their duty to protect the public, will need to access and employ cyber surveillance tools in response. Carpenter ensures that these new technologies will eventually be subject to close judicial scrutiny by examining the expectations of privacy in litigation over the application of the Fourth Amendment to these crime fighting tools.

Peter A. Crusco is executive assistant district attorney, investigations division, Office of the Queens County District Attorney. The views expressed herein are the author's, and do not necessarily reflect the policies or views of the office.