In re United States
2011 U.S. Dist. LEXIS 93494
E.D.N.Y2011Background
- Government seeks 18 U.S.C. §2703(c)(1)(d) order directing Verizon to disclose cell-site-location records for at least 113 days.
- Magistrate Judge Orenstein denied the application on Fourth Amendment grounds; the government resubmitted to this court.
- Court considers the application de novo in light of evolving Fourth Amendment doctrine.
- Proposed order would reveal base station towers/sectors for the target phone from Sept. 1, 2010 to the order date.
- Court concludes the requested data constitutes a Fourth Amendment search requiring a warrant and probable-cause showing.
- Court notes cell-site-location data could enable mass surveillance and raises heightened privacy concerns compared to short-term tracking.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does obtaining 113 days of cell-site data constitute a Fourth Amendment search? | Government argues SCA order is permissible. | Verizon contends no Fourth Amendment issue if data is less intrusive. | Yes; it is a search requiring a warrant. |
| Is the SCA order standard sufficient without probable-cause warrant? | Government relies on §2703(d) lower standard. | Verizon emphasizes statutory process, not Fourth Amendment warranting. | No; warrant and probable cause required. |
| Does third-party-disclosure doctrine bar privacy in cell-site data? | Cell users voluntarily disclose to provider; no privacy. | Disclosures to intermediary do not always erase privacy interests. | Exception to third-party-disclosure applies to cumulative LOC data. |
| Does the content exception apply to location data to preserve privacy? | Content-like privacy should be protected for sensitive data. | Content exception limited; data here is location metadata. | Yes; normative privacy preserves protection for LOC data. |
| Should evolving technology modify Fourth Amendment doctrine? | Technology requires adaptation to protect privacy. | Court should not rewrite doctrine beyond necessity. | Yes; doctrine must evolve to protect privacy in cumulative LOC data. |
Key Cases Cited
- Katz v. United States, 389 U.S. 347 (N.D.) (established two-part test for a Fourth Amendment search)
- Knotts v. United States, 460 U.S. 275 (U.S. 1983) (tracking movements on public roads; expectation of privacy limited)
- Smith v. Maryland, 442 U.S. 735 (U.S. 1979) (third-party disclosure and pen registers; no privacy in numbers dialed)
- United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010) (prolonged GPS tracking constitutes a search)
- United States v. Warshak, 631 F.3d 266 (6th Cir. 2010) (storage of emails in an ISP context invokes privacy expectations)