from the get-that-Carpenter-juice-flowing dept
The Fifth Circuit’s unlikely decision to side with a constitutional right that wasn’t the Second Amendment is starting to trickle down to the lower levels of the federal court system. Last August, the Fifth Circuit bucked its own cop-friendly trend by ruling that geofence warrants — warrants that demand massive amounts of geolocation data when cops don’t even know who they’re looking for — weren’t constitutional, even when the Third Party Doctrine is factored in.
When a single warrant forces a company like Google (and it’s always Google) to search millions of records to find the ones corresponding to time/location constraints listed in the warrant (and those constraints are often extremely loose), it’s not all that different from the pre-USA practices of the British government, which allowed “general rummaging” in hopes of finding something that might look like evidence.
“General warrants” haven’t been constitutional for a long time. Citing the Supreme Court’s ruling on geolocation data pulled from cell service providers, the Fifth Circuit said most, if not all, geofence warrants come down on the wrong side of the law:
While the results of a geofence warrant may be narrowly tailored, the search itself is not. A general warrant cannot be saved simply by arguing that, after the search has been performed, the information received was narrowly tailored to the crime being investigated. These geofence warrants fail at Step 1—they allow law enforcement to rummage through troves of location data from hundreds of millions of Google users without any description of the particular suspect or suspects to be found.
This point was driven home at the conclusion of the ruling:
We hold that geofence warrants are modern-day general warrants and are unconstitutional under the Fourth Amendment.
That decision is now paying off, as FourthAmendment.com reports. A US Magistrate Judge (the judge that performs the first review of federal warrant applications) has expanded the Fifth Circuit’s ruling to another form of general warrant: those seeking access to “tower dumps.”
Tower dumps are bulk collections of all cell tower connections generated in a certain area at a certain time. They’re not all that different from geofence collections, except that investigators might need to know which cell service provider to approach, which would possibly indicate they might know something about the suspect they’re seeking, even if it’s nothing more than the cell service they’re most likely using.
But it’s not even that specific in this case. This one involves investigators performing the equivalent of loading a geofence warrant into a shotgun and hoping to hit a target. From the USMJ ruling [PDF]:
The applications seek to obtain from four separate cellular service providers a list of phone numbers and identifiers for cellular devices that connected to cell towers covering nine locations during specific windows of time ranging from ten minutes to one hour for each location. The applications also request information about all communications made using those towers during the specified times.The time windows and locations correspond to crimes the Government suspects were committed by members of a violent street gang.
This definitely sounds like the government was attempting to find some other way to gather the data it normally would have collected with geofence warrants. The list of data requested went beyond what’s referenced above. The FBI investigators also wanted the “sectors” (which “face” of the tower received the signal) of each tower, as well as what type of communication (phone call, text message) had been relayed by the targeted towers.
What the FBI apparently hoped would be seen as a routine tower dump, rather than just another unconstitutional general rummaging, failed to convince the judge that it was more of the former and less of the latter. Warrant or not, this was a vague and overly broad attempt to locate certain suspects by asking four service providers to do their dirty, unconstitutional work for them.
In terms of the temporal scope of the Government’s request, each warrant application seeks data for devices connecting to the towers serving the nine locations for a combined total of 220 minutes. So the Government wants the Court to require the four cellular providers to provide data for a total of 880 minutes—or more than 14 hours—for every device connecting to any of the towers serving those locations.
Citing both the Supreme Court’s location data decision and the Fifth Circuit’s ruling on geofence warrants, the MJ says the Fifth Circuit’s decision matters a bit more in their ruling on these warrant requests. It’s not necessarily how long the “snapshot” of cell phone activity demanded is, it’s how much each “snapshot” encompasses. Here, the requests invade the privacy of thousands of people in the mere hope that the government will end up with something it can use to go after criminal suspects.
Here, based on a review of publicly accessible maps, the areas within one mile of each of the Government’s specified locations include residential neighborhoods, a mall, medical clinics, schools, shopping centers, a supermarket, churches, a courthouse, hotels, interstate highways, a train station, and an airport. It is unclear how many people are implicated by the Government’s requested tower dumps, but it is plausible the total will easily exceed the three people in Smith [the Fifth Circuit geofence case] by hundreds if not thousands given the population density of the covered areas.
Furthermore, the Supreme Court’s ruling on cell site location info (CSLI) made it clear this data isn’t subject to the Third Party Doctrine. Either you connect to cell towers or you don’t have cell service. This isn’t a “voluntary” sharing of data with third parties. And the Smith ruling by the Fifth Circuit went even further, stating that “voluntary” sharing with companies like Google is rarely voluntary, since it tends to rely on user ignorance or, in some cases, Google doing things users never specifically agreed to.
The judge isn’t willing to let the government search everyone just to find certain someones.
[W]hile the Government has some idea of who may have been involved in one or more of the crimes—the affidavits supporting the warrant applications list seven potential suspects—the Government has not presented probable cause to believe that any particular individual committed any of the specific crimes described. The warrant applications also arguably present probable cause to believe that the searches will reveal the location data of some unknown perpetrators of the crimes. See Mem. at 3 (explaining that affidavits describe “the belief that the cell towers will contain evidence of [who committed] the offenses”). But this is not enough. If the Court were to issue the warrants, it would be authorizing the Government to search the data for every cellular device (including cell phones) of every single individual near the crime scenes without a showing of probable cause as to each individual.
And that’s the way it’s supposed to be. “Probable cause” to compel these third-party searches cannot be simply the logical presumption that cell service providers retain site/location data records. Specificity is key to warrants to prevent them from allowing “general rummaging.” When the government uses these methods, it simply hopes to elude specificity requirements by demanding private parties do their rummaging for them. Shifting the burden doesn’t make it any more constitutional, not when this rummaging would never have occurred without the application of government power.
We’ll see how long this rejection stands. No doubt the government has already asked for a review of this ruling by the next federal court level. And if it doesn’t get the answer it wants, it still has the Fifth Circuit Appeals Court and the Supreme Court to ask for a third and fourth opinion. Given the Fifth Circuit’s ruling, however, it seems like the government may have to take this one all the way to the top to secure the sort of precedent it wants.
Filed Under: 4th amendment, 5th circuit, carpenter, cell tower dumps, geofence warrants, mississippi, surveillance
