September 8, 2010
The 3rd Circuit on Tuesday September 7th handed down a much anticipated decision dealing with the Governments attempts to get cellular network positioning information without a warrant (2010 WL 3465170).
The dispute stems from the Governments attempts to obtain cell site location information (CSLI) regarding a particular subscriber under the Stored Communications Act (18 U.S.C.A. §§ 2701 et seq.).
CSLI is information that cellular providers maintain regarding the location of their customers when they make a call. Whenever a cellular customer makes a phone call, the cellular providers record what tower transmitted the call, as well as what “face” of the antenna was used to receive the call.
The police argue that this is valuable information for proving that individuals were at certain locations at particular times. In this case, they requested the information under the Stored Communications Act provision that allows the Government to obtain the information by getting a court order merely upon a showing of the information’s relevance and materiality of the data to an ongoing criminal investigation. This Act relieves the Government in certain situations of having to get a warrant and show probable cause.
In this case, the lower court refused to grant the order, and in a rare occurrence the order denying the request was joined by the other judges in the district. The lower court held that the Stored Communication Act did not apply and that the CSLI records could only be obtained upon a showing of probable cause.
The 3rd Circuit here decided that the Stored Communications Act does not necessarily require that Probable Cause be shown in order to obtain this data. Having decided that the lower court’s decision would not stand, much of the later decision dealt with the Government’s contention that if it met the requisite showing under the Stored Communications Act then the Magistrate must grant the order. The 3rd Circuit did not agree, in addressing the legislative history they concluded that the magistrate might have discretion to require probable cause and a warrant under some circumstances. The 3rd Circuit then remanded to the lower court for further consideration.
For more on the Stored Communications Act, see Chapter 9 of Data Security and Privacy Law: Combating Cyberthreats; specifically, DATASPL § 9:17 et. seq.