Surveillance Without Search

 

A few federal court opinions have been making a big public splash recently by taking surprising positions on how the Fourth Amendment applies to location surveillance. The latest opinion in the line is Magistrate Judge James Orenstein’s decision in In The Matter Of An Application Of The United States Of America And Order For An Order Authorizing The Release Of Historical Cell-Site Information, handed down on Friday. The decision holds that historical cell-cite data — records generated by cell phone providers in the ordinary course of business that indicate which cell towers were communicating with a phone, and thus, the rough location of the phone — are protected by the Fourth Amendment and its warrant requirement.

It’s only a decision by a Magistrate Judge, and it is not binding on anyone. But it is an extraordinary opinion, in my view: It’s an extraordinary result, reached in an extraordinary way, and based on an extraordinary number of errors. — Orin Kerr

The question of surveillance and its relationship to the Fourth Amendment protections against unreasonable searches and seizures has been a huge problem for years. Clearly it is a search to enter someone’s house and ransack its contents. It has long been held a search to listen to a phone call or to intercept and read a letter or email. But in Smith v. Maryland (1976), it was held that simply tracking who made a phone call to whom was a form of surveillance that did not involve a search. It was no different from watching someone walk up and down the street, from which it was possible to draw inferences as to unlawful behavior. No warrant was needed. With historical cell-site data, the government in effect learns which communication towers are used to transmit calls from a given call, which allows it to track the whereabouts of a suspect. Something known as the Stored Communications Act restricts the ability of the government to undertake this surveillance to cases where there is a “reasonable suspicion” of wrongdoing, which is a lower standard than the “probable cause” needed for a warrant under the Fourth Amendment.

So the question is whether the continuous monitoring goes beyond that of tracking phone numbers, and I confess that it is hard to see the distinction. A recent District of Columbia case held that placing a GPS device on a car was a search, which is explicable given that there is a trespass to the property of the party whose motion is tracked. Yet that case itself might not survive Supreme Court scrutiny given that the trespass did not allow the government to overhear conversations like the traditional phone tap. It is clear that the issue is headed for higher places. With each new generation of technical advances, the ability to watch over and track citizens increases—along with the need to do both. My sense is that in the end the distinction between fact of communication and content of communication will turn out to be the only workable line. It tracks reasonably well the privacy interests that the Fourth Amendment protections. But it is not the be-all-and-end-all of tests. But then again nothing is in connection with the Fourth Amendment.

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  1. Profile Photo Member
    @AaronMiller

    Is there a difference between tagging someone’s vehicle with a locator device and tagging someone’s clothing? Assume someone sets aside his jacket in a public area. Is there, and should there be, any legal limit to the precision and continuity of location tracking?

    In fact, to take us slightly into science fiction, suppose police could use a small airgun to attach a microscopic tracking device directly to someone’s skin. The dart-like device could even contain the same chemical which mosquitoes inject to hide the sensation of skin puncture, so the person would be completely unaware that anything had happened. Would such utterly constant and precise location tracking be illegal and/or immoral?

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  2. Profile Photo Contributor
    @JohnYoo

    As you say, Richard, this is going to be a big issue brought on by technological advances, and the law is only now beginning to grapple with it. Innovations that make life easier also make government surveillance easier. If you can track the location of your fancy iPhone through the internet, and use social networking and GPS to see the location of your friends (as I have seen on t.v. commercials), then the government can do the same thing.

    The problem with developing the rules for surveillance is the temptation to treat everything as a brave new world. A well-known judge called this the problem of the “law of the horse.” There was once a well-developed set of rules about horses, horse accidents, horse ownership, etc. Then cars came along. This didn’t mean that we had to develop a whole spanking new system for the cars. Instead, we took the basic principles that governed accidents, and horses, adapted them to cars.

    Here, there is a temptation to treat everything involving the internet as so totally new that society has a freewheeling ability to make up whatever rules it wants. (1/2)

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  3. Profile Photo Contributor
    @JohnYoo

    Or, better, have no rules at all — like those who download free music without paying for it. But the better course is to see how our long history of common rules might handle the new developments. So, like you, Richard, we might think about cellphone information in the same way we think about the privacy over telephone numbers, which themselves were adapted from the thinking on envelopes. The idea was that addressing information on envelopes was not considered private information, because the writer wrote them on the outside where others could see them and would have to see them to get the letter to the right place. From there, society decided that telephone numbers were not private, because the caller gave them to the network to help route the call. From there, I think, email messaging and header information will follow as not-private. Same might go with the GPS signals — if the cellphone or GPS device is sending information to the network, it is making that information non-private, and so it is not protected by the Fourth Amendment in the same way that the inside of a letter or the content of an email should be. (2/2)

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  4. Profile Photo Contributor
    @RichardEpstein

    John, you and I both adopt the same approach. It is all right to look at the wrapper but not to peer inside at the contents, which is a good compromise that is both administrable and comports with those elusive reasonable expectations, in that it divides the responsibility for privacy between the two sides.

    But I think you have to be a bit fairer to the law of the horse, as it is sometimes said. I believe that the expression is best attributable to Frank Easterbrook, and is offered as a warning against thinking in ad hoc terms when legal categories are available. That is surely right insofar as for example the rule of tort damages to animals will be the same usually for horses as for cows and so too the rules on offer and acceptance in a contract to sell a horse or a cow. But sometimes the category does matter, especially in dealing with matters of specialized usage. Customary terms on the risk of disease or infertility may differ from horses to cows as a function of value or pedigree. [1/2]

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  5. Profile Photo Contributor
    @RichardEpstein

    The complete lawyer knows both the general principles applicable to all transactions and the customary practices applicable to some subset.

    In our case, these differences don’t matter. But it is important to note that particularism has a legitimate place in the law. [2/2]

    End of my digression.

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  6. Profile Photo Contributor
    @RichardEpstein
    Aaron Miller: Is there a difference between tagging someone’s vehicle with a locator device and tagging someone’s clothing? Assume someone sets aside his jacket in a public area. Is there, and should there be, any legal limit to the precision and continuity of location tracking?

    In fact, to take us slightly into science fiction, suppose police could use a small airgun to attach a microscopic tracking device directly to someone’s skin. The dart-like device could even contain the same chemical which mosquitoes inject to hide the sensation of skin puncture, so the person would be completely unaware that anything had happened. Would such utterly constant and precise location tracking be illegal and/or immoral?

    Aaron, I alluded to this point in the initial post, in noting that the trespass issue did make a difference to the District of Columbia Court which found that attaching a GPS device to a car was illicit. Generally, trespassing on the person or property will get the government in trouble. But not trespassing does not guarantee safety. Eavesdropping is that kind of an illustration, even with a parabolic microphone that does not invade the private party’s premises.

    • #6
  7. Profile Photo Contributor
    @JohnYoo

    Tracking someone’s car seems more permissible than attaching a tracker to their clothes. As Richard says, the courts will likely compare a tracking device to a car to the cases that protect personal integrity. Although it seems that tracking devices on cars require a warrant, I’m not sure if the court got that right. The police could tail the car without the need for a warrant, so why couldn’t they place a tracker on the car? They have to place the tracker in a public place like a supermarket parking lot, because there is no privacy interest when you have your car out in the open, is there? If the police entered the land of the suspect to place the tracker, then they would need a warrant, just as they would to enter the land anyway. But if the tracker shows the suspect went from the supermarket to home, isn’t that the same information that the police would have had if they had just followed him with a police car? [1/2]

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  8. Profile Photo Contributor
    @JohnYoo

    As Richard said in his last post, it is important to know the principles from the law of the horse, but the particular applications will change on the differences of the new situation. This is similar to the case involving heat detectors used to search for marijuana growing gardens inside houses. Even though the police used the devices from the street, even Justices Scalia and Thomas said that this was a search that required a warrant. [2/2]

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  9. Profile Photo Member
    @AaronMiller
    John Yoo: Even though the police used the devices from the street, even Justices Scalia and Thomas said that this was a search that required a warrant. [2/2] · Sep 1 at 8:43am

    This is why I asked about placing trackers on clothing. Unlike a tracking device on someone’s car, a locator on one’s clothing follows one indoors, where privacy can reasonably be expected. If it is illegal to use infrared cameras in such a way without a warrant, then a warrant should also be required for tracking someone’s movement through an interior environment (beyond a streetside view of windows).

    Y’all answered my question. Thanks.

    • #9
  10. Profile Photo Contributor
    @RichardEpstein

    There is no question that the case for tracking is easier with cars than it is with the person, if only because the separation between the person and the tracking device is greater in the one case than the other. But as I said earlier, I think that the notion of trespass works powerfully against any of these intrusions, even though tracking, or tailing, without trespass is always much harder to sort out. As a general matter, tailing when done by private persons is always a bit iffy; stalking is much more offensive and probably wrongful in all of its respects. But if we can locate the point of controversy to this one area, we have gone a long way to clarify the law. Note that on this view, the decision to use heat detectors to track down marijuana behind closed walls seems to me to be correct, as John indicates.

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  11. Profile Photo Member
    @

    FWIW, my father, who was a federal magistrate himself (I can remember the g-men coming to our home late at night seeking warrants…) as well as a practicing litigator, agrees with our esteemed Contributors:

    The cell phone tower records allows the authorities to learn the phone numbers of the participants to a call and then who they are, but does not reveal the content of the call. To obtain such information does not seem to involve a search as it reveals the fact of a call but not the content. I think the decision of the Magistrate is probably wrong, but the issue, I believe, will be pursued… Fourth Amendment law is frequently litigated in a variety of cases dealing with the issue of a warrant requirement with a variety of results depending on the factual situation. In this era of unlimited and sophisticated means of communication “searching” for information in phone records, computer drives, etc will, perhaps, generate more cases of this kind. It used to be just searching houses for drugs or places of business for records, now it is reaching into cyberspace with uncertain rulings looming.

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  12. Profile Photo Inactive
    @DavidSchmitt
    John Yoo: But if the tracker shows the suspect went from the supermarket to home, isn’t that the same information that the police would have had if they had just followed him with a police car? [1/2] · Sep 1 at 8:43am

    Does the tracker belong to the owner of the car once attached? Is the owner free to attach it to another’s car with impunity? I always imagined my automobile to be an extension of my residence and intrusion was likewise prohibited, unless by a warrant. It follows that flyers for discount pizzas placed under my wiper are an intrusion, but we choose as a society to ignore this until it becomes a problem. Reducibility of means to effect must not be an absolute basis for justification. Richard Epstein’s reduction in kind of the monitoring of cell phone routing information (not content) to inferences from the observation of public presence and behavior of a person differs from the attempt to reduce emitter tracking to visual “tailing” because of the physical, targeted transmitter-receiver pair that requires the intrusion of private property. Citizens should be free from targeted surveillance without a court order.

    • #12

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