In Cell Site Data, the government requested historical cell site date for three separate criminal investigations. In re Application of the United States for Historical Cell Site Data, 724 F.3d 600, 602 (5th Cir. 2013). The magistrate judge denied the request for this historical cell site data based on the Fourth Amendment, and the government appealed the decision to the Fifth Circuit. Id. at 604. The government contended that it should be able to obtain the information under Section 2703(d) of the Stored Communication Act (SCA). Id. at 610; 18. U.S.C. § 2703(d).
The SCA “regulates disclosure of stored electronic communications by service providers.” Id. at 606. A court must grant an order for information if the government offers “specific and articulable facts showing that there are reasonable grounds to believe that the contents of . . . the records . . . are relevant and material to an ongoing investigation.” Id. (emphasis added). The “specific and articulable facts” standard is less demanding than the probable cause warrant standard of the Fourth Amendment. Id.
Relying on United States v. Jones, the ACLU argued the individuals have a reasonable expectation of privacy in their location, especially over long periods of time. Id. at 608. The government “draws a line based on whether it is the Government collecting the information or requiring a third party to collect and store it, or whether it is a third party, of its own accord and for its own purposes, recording the information.” Id. at 610. The “collector” of information is key, because, when an individual “knowingly exposes his activities to third parties, he surrenders Fourth Amendment protections.” Id.
The Fifth Circuit agreed with the government. It reasoned that the cell phone providers control what they record and how long they keep records. Id. at 612. The court commented that the “[g]overnment has neither ‘required [n]or persuaded’ providers to keep historical cell site records.” Id.
The court commented that cell service subscribers understand their location is being tracked. It first commented that a subscriber “understand that his cell phone must send a signal to a nearby cell tower in order to wirelessly connect his call.” Id. at 613. The court then noted that cell phone contracts “inform customers that the providers not only use the [location] information, but collect it.” Id.
The Fifth Circuit held that the SCA conforms to existing Fourth Amendment precedent. Id. at 614. The court commented that it understood that cell phone users may want their information kept private, but the proper recourse is in the market or political process. Id.