Editor's note: This is the first in a two-part series.

In United States v. Stimler, No. 
15-4053 (Third Cir. July 7), the U.S. Court of Appeals for the Third Circuit held that defendant Jay Goldstein's Fourth Amendment rights were not violated when the magistrate issued an order under the Stored Communications Act, 18 U.S.C. Section 2703(d) (SCA), compelling AT&T to provide to the government historic cell site location information (CSLI) generated by Goldstein's phone. Goldstein had argued that the order was unconstitutional because to obtain it, the government had needed to show only “reasonable grounds” that the information sought would be kept by AT&T and help prove the charges facing Goldstein, while the government should have been required to meet the Fourth Amendment's higher evidentiary standard of probable cause. The three-judge panel held that the magistrate's order was proper because its 2010 decision, In the Matter of the Application of the United States for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 620 F.3d 304 (3d Cir. 2010), held that cellphone users lacked a reasonable expectation of privacy in CSLI, making the Fourth Amendment inapplicable. It further reasoned that there were no grounds to revisit the 2010 decision. In his concurring opinion, Judge Felipe Restrepo made the argument that the defendant Goldstein did have a reasonable expectation of privacy in the CSLI, but that his objection to the admission of CSLI information was properly overruled because the government, having followed federal law in obtaining the SCA order, had acted in “good faith, and thus the good faith exception to the search warrant requirement precluded suppression of the evidence.” In this article, I review the majority and concurring opinions and discuss Restrepo's argument that cellphone users have a reasonable expectation of privacy in CSLI held by providers. There are many good arguments on both sides of the issue, and we will try to look at all of them closely and fairly.

Background

Defendants Binyamin Stimler, Goldstein, and Mendel Epstein are Orthodox Jewish rabbis charged with various kidnapping-related offenses, stemming from their involvement in a scheme through which they, along with others, sought to assist Orthodox Jewish women to obtain divorces from recalcitrant husbands. Within the Orthodox Jewish community, women cannot be divorced without the consent of their husbands. The three defendants “worked with 'tough guys' or 'muscle men' in exchange for money to kidnap and torture husbands in order to coerce them” to consent to divorce from their wives. (Full disclosure of weird fact: This took place in the town of Lakewood, New Jersey, where I grew up.) A jury convicted the defendants of conspiracy to commit kidnapping.

After indictment and arrest, during its preparation for trial, the government applied for a court order under the SCA to compel AT&T to turn over historic CSLI generated by Goldstein's phone. As the court explained, “CSLI is generated every time a cellphone user sends or receives a call or text message; when the call or message is routed through the nearest cell tower, the user's service provider generates and retains a record identifying the particular tower through which the communication was routed. In more densely populated areas, cell towers are able to triangulate an individual's approximate location based on the individual's distance from the three nearest towers. … Historic CSLI records can … generate a rough profile of an individual's approximate movements based on the phone calls that individual makes over a period of time.” The order for such records covered a total of 57 days of Goldstein's location history.