Case o' The Week: Our Privacy Protections are Koh-Dependent -- In re: Application for Telephone Information - Fourth Amendment and Historical Cell Site Location Information

“Considering the ubiquity of cell phones, and the important role they play in today’s world, it is untenable to force individuals to disconnect from society just so they can avoid having their movements subsequently tracked by the government.”

 In re: Application for Telephone Information Needed for a Criminal Investigation, 15-XR-90304-HRL-1, at 35 (LHK) (N.D. Cal. July 29, 2015), decision available here.

Players: Decision by District Judge Lucy H. Koh, N.D. Cal. Historic win for ND Cal AFPD Ellen Leonida, R&W Attorney Robin Packel, and Investigator Madeline Larsen, with welcome amicus help from E.F.F. counsel Hanni Fakhoury and ACLU Senior Staff Attorney Linda Lye.

Facts: The USAO sought what is dubbed a “d” order for historical and prospective cell site location information (“CLSI”) relating to specific (under seal) phone target number(s). Id. at 9 (referring to 18 U.S.C. § 2703(d)).  These (d) orders are not supported by probable cause: the statute only requires "specific and articulable facts." Id. at 6.

San Jose Magistrate Judge Lloyd denied the application, and the government appealed as to historical cell site information only. Id. at 9. The Court invited the N.D. Cal. FPD to file a response. Id. at 10. On June 24, the Court held a (long) hearing with specific questions relating to technical aspects of cell site technology and the impact on privacy interests.

Issue(s): “Neither the U.S. Supreme Court nor the Ninth Circuit has squarely addressed whether cell phone users possess a reasonable expectation of privacy in the CSLI . . . associated with their cell phones . . . . In the absence of any binding authority, the Court ventures into this ‘troublesome’ area of Fourth Amendment law as a matter of first impression.” Id. at 12.

Held: “Based on the preceding U.S. Supreme Court cases, the following principles are manifest: (1) an individual’s expectation of privacy is at its pinnacle when government surveillance intrudes on the home; (2) long-term electronic surveillance by the government implicates an individual’s expectation of privacy; and (3) location data generated by cell phones, which are ubiquitous in this day and age, can reveal a wealth of private information about an individual. Applying those principles to the information sought here by the government, the Court finds that individuals have an expectation of privacy in the historical CSLI associated with their cell phones, and that such an expectation is one that society is willing to recognize as reasonable.” Id. at 16. 

“[W]here the information sought is historical CSLI, a warrant supported by probable cause is required . . . .” Id. at 45.

Of Note: The Hon. Lucy Koh is a Silicon Valley judge, who is used to dealing with massive antitrust litigation involving Adobe, Google, Intel, Intuit, etc.. She presided over Apple Inc. v. Samsung, and has had more cutting-edge technology and patents come across her desk than most federal districts (and some federal circuits) combined. Combine this tech savvy with cutting-edge privacy and constitutional issues, and the result is a seminal, forty-six page order that holds that an application for historical CLSI requires a showing of probable cause. Id. at 45. 

Notably the government’s declarations bragged of “ever-increasing precision” of cell site location, id. at 16, and Judge Koh relies on the government’s own factual record to find this investigative technique treads on reasonable expectations of privacy, id. at 17:1-5; 30-32 (distinguishing Davis). It is a remarkably thoughtful opinion that grapples the realities of modern technologies: a must-read.

How to Use: The AUSA in your case relied on a (d) order and did not make a probable cause showing to obtain historical cell site location data. 

Your AUSA has not disclosed to you that agents obtained that data – Feds don’t consider this Rule 16 discovery.

Because your AUSA obtained historical CSLI without a probable cause showing, the investigation that flowed from that cell-site data – surveillance, pen registers, wiretaps – is the Fourth Amendment fruit of a poisonous tree. Seek disclosure of “all historical cell site location information” and the (d) orders that produced it, and move to suppress evidence arising from it. 

(And no “good faith exception” (see Cooper below, that put the Feds on notice)).

                                               

For Further Reading:
Judge Koh stands upon the shoulders of another NorCal privacy champion.

Hon. Judge Susan Illston

In United States v. Cooper, Judge Susan Illston first held that the government should have obtained a search warrant for historical CLSI. (Litigated by ND Cal CJA Attorney Ethan Balogh). For the back story to Judge Koh’s order (with a link to the Cooper decision) see article here.

Image of the Hon. Judge Lucy H. Koh from http://sourcedigit.com/694-judge-lucy-h-koh-apple-inc-v-samsung-case-no-c-11-1846-c-12-0630/

Image of the Hon. Judge Susan Illston from http://www.wired.com/2014/01/judge-nsl/

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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