Fourth Amendment Protections for Cell Phone Records

In Smith v. Maryland, the Supreme Court disseminated what has become known as the “third party doctrine.” This doctrine asserts that, under Fourth Amendment law, people have no expectation of privacy in information they expose to others. This holding gives government access to personal information about individuals, such as the websites they visit, who they email, what phone numbers they dial, their banking and education records, and so forth. The issue today is whether the Smith decision should be reconsidered, in light of evolving advances in technology, which may change society’s expectations of privacy. The Katz test requires us to ask whether: (1) there is a subjective expectation of privacy on cell phones; and (2) whether society is prepared to accept that expectation as being reasonable. The first prong must be evaluated on a case-by-case basis. So the issue boils down to whether society is prepared to recognize as “reasonable” a person’s expectation of privacy regarding their cell phone data.

In Smith, the police requested that a telephone company install a pen register at its central offices, in order to record the numbers dialed from the telephone at petitioner’s home. Petitioner moved to suppress all evidence derived from the pen register. The Maryland court denied the motion, finding no Fourth Amendment violation, and the Appellate court affirmed. The Unite States Supreme Court agreed with the Maryland courts, holding that the installation and use of the pen register to obtain phone numbers dialed from petitioner’s home was not a “search” within the meaning of the Fourth Amendment—therefore, no warrant was required. Important to the Court’s decision was the Court’s belief that society would treat an expectation of privacy in the information obtained—i.e. the phone number one dials—as unreasonable because the high court had consistently held “that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” The Court relied on a previous case, United States v. Miller, where Court found that a person’s bank records were not private because people assume the risk that information they share with someone could be revealed to another person, including the government. Under this rationale, Smith had no reasonable expectation of privacy in the phone numbers he dialed because he had to reveal the numbers he dialed to the phone company, in order to dial them. Therefore, he should assume that the phone company could reveal that information to others, like the government. It followed, then, that the pen register installation was not a “search” for Fourth Amendment purposes, since Smith had no reasonable expectation of privacy. It was important to the Smith Court that “first,…telephone users know that the phone company, for its own purposes, records the numbers dialed on a given phone; and second, that dialing information was therefore voluntarily turned over to a third party. The former conclusion defeated the defendant's subjective expectation of privacy; the latter demonstrated that any expectation was unreasonable in any event.” United States v. Cusumano, 67 F.3d 1497, 1508 (10th Cir. 1995) vacated and superseded on reh'g en banc, 83 F.3d 1247 (10th Cir. 1996) (citing Smith v. Maryland).

Since Smith, the circuits have been split on whether the third party doctrine protects cellular data from Fourth Amendment protection. The Fourth Circuit has held that the government’s warrantless procurement of cell site location information (CSLI) recorded by defendants’ cell phone service provider violated the Fourth Amendment (U.S. v. Graham, 796 F.3d 332, 2015). The Fourth Circuit also explicitly held that phone customers have no constitutionally cognizable privacy interests in basic subscriber information, and thus, law enforcement officer's procurement of defendant's phone records, without securing a subpoena or warrant, did not amount to a constitutional violation (U.S. v. Clenney, 631 F.3d 658, 2011). The Eleventh Circuit has held that the government obtaining a court order under Stored Communications Act (SCA) for production of cell phone carrier's business records was not a search and, even if it was a search, obtaining records without a warrant was reasonable (U.S. v. Davis, 785 F.3d 498, 2015). The First Circuit held that the search-incident-to-arrest exception did not authorize the warrantless search of data on a cell phone seized from arrestee's person (U.S. v. Wurle, 728 F.3d 1, 2013). The Sixth Circuit has held that a person does not have reasonable expectation of privacy in inherent location data broadcast from his cellular phone (U.S. v. Skinner, 690 F.3d 772, 2012).

Smith has been relied upon to gather all sorts of personal data, including: Twitter account information, tracking a cell phone’s past locations, and the NSA’s bulk collection of telephone metadata and Internet communications. [1]

State courts have begun to fight back against the Smith decision. The following states recognize an expectation of privacy in phone records: Alabama (cell site), California, Colorado, Florida (phone and cell site), Georgia (cell site), Hawaii, Idaho, Illinois, Massachusetts (cell site), New Jersey (phone andcell site), Pennsylvania, Washington. By statute, Georgia and Oregon require police to demonstrate probable cause to obtain phone records. Several states have passed legislation that requires police to obtain a search warrant to track a person’s location through their cell phone. 

Critics of the Smith decision argue that “privacy is not an all or nothing commodity” (citing Justice Marshall’s dissent in Smith). Most people have an expectation of privacy in their bank records and the phone numbers they dial. As more and more people begin to have an expectation of privacy in these things, and in the cellular data contained on their phone, the expectation becomes reasonable (instead of unreasonable, as Smith would suggest, because it was disclosed to others). These critics make the argument that “as more people do have an expectation of privacy in information they’ve turned over to third parties, it's the Smith decision, and not the expectation of privacy, that becomes unreasonable.” In a concurring opinion in U.S. v. Jones, Justice Sotomayor also suggested that the Court should re-consider Smith, and adapt the law to evolving technology. She stated that Smith was “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

I agree with Justice Sotomayor and the critics of the Smith decision. I don’t suggest that the third party doctrine is unsound—in fact, it sounds a lot like a waiver of attorney/client or other privilege. However, the ubiquity of Cloud-based servers makes almost all currently held data “voluntarily turn[ed] over to a third party.” Yet most of this data is information we, as a society, absolutely expect to be private. The law needs to adapt in light of evolving technology. Since cell phones (and other mobile computing devices) are really just small personal computers, they should be given the same privacy considerations. Court have generally treated privacy issues regarding computers as “closed container” cases. Because courts recognize a reasonable expectation of privacy in closed containers, courts have generally also found a reasonable expectation of privacy for data held within electronic storage devices. [2] I believe that society is ready to recognize as “reasonable” an expectation of privacy on cell phones (and other data stored on the Cloud). As such, courts should also recognize a reasonable expectation of privacy, and therefore Fourth Amendment protections, for cell phone records.