EPIC v. DOJ (CSLI Section 2703(d) Orders)
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- Senate to Consider Nomination of William Barr for Attorney General: This week the Senate Judiciary Committee will begin hearings on the nomination of William Barr for Attorney General. In a statement to the Committee, EPIC warned that "Mr. Barr has consistently supported warrantless surveillance of the American people." EPIC pointed to Barr's previous Congressional testimony where he stated that FISA is "too restrictive" and that Americans have no Fourth Amendment right in records held by third parties. EPIC recommended that the Department of Justice work with Congress to update federal wiretap laws after the Supreme Court's decision in Carpenter, improve reporting on surveillance orders, and protect consumers in cases before the Supreme Court. (Jan. 14, 2019)
- Congress Asks Google, Apple About Smartphone Data Collection + (Jul. 10, 2018)
- EPIC Urges Supreme Court to Steer Clear of Warrantless Vehicle Searches + (Nov. 20, 2017)
- Supreme Court to Hear Two Fourth Amendment Cases + (Sep. 28, 2017)
- DC Court: Warrantless Tracking with "Stingray" Violates Fourth Amendment + (Sep. 22, 2017)
- EPIC Urges Supreme Court to Apply Constitution to Cell Phone Data + (Aug. 14, 2017)
- Supreme Court to Hear Case on Privacy of Cell Phone Location Data + (Jun. 5, 2017)
- House Committee to Examine Cell Phone Surveillance + (Oct. 21, 2015)
- Appeals Court Upholds Fourth Amendment Protection of Location Data + (Aug. 6, 2015)
- Federal Court Finds Fourth Amendment Protects Cell Phone Location Data + (Aug. 4, 2015)
- In the States: NH Adopts Location Privacy Law + (Jul. 28, 2015)
- EPIC Launches State Policy Project + (May. 5, 2015)
- FTC Reaches Settlement with Customer Tracking Technology Firm Over Privacy Violations + (Apr. 24, 2015)
More top news
In Freedom of Information Act lawsuit EPIC v. DOJ, EPIC is seeking the public release of information detailing the Department of Justice's collection of cell site location information through S 2703(d) court orders.
Today, cell phones are as necessary as they are ubiquitous to Americans. Almost 95% of Americans own a cell phone. But, cell phones also generate precise location records that can track an individual's movements over time. As the Supreme Court recently explained in Carpenter v. United States, modern cell phones "tap into the wireless network several times a minute whenever their signal is on" and these connections generate "a time-stamped record known as cell-site location information (CSLI)." Telecommunication companies routinely collect and store this CSLI data. Prior to the Supreme Court's decision in Carpenter, law enforcement has routinely sought access to this data, without a warrant, through S 2703(d) court orders under the Stored Communications Act.
Section 2703(d) Orders Under the Stored Communications Act
Enacted in 1986, the Electronic Communications Privacy Act (ECPA) protects a wide range of electronic communications in transit and at rest. ECPA expanded and revised federal wiretapping and electronic eavesdropping provisions, including the Wiretap Act, and created the Stored Communications Act.
The Stored Communications Act requires law enforcement to obtain a court order or subpoena to access certain subscriber records. Section 2703(d) of the Act authorizes the government to compel a provider of electronic communication services to disclose certain subscriber records through a court order. Section 2703(d) orders can be granted based on a showing of "reasonable grounds to believe" that the records sought are "relevant and material" to an ongoing criminal investigation. This standard is lower than the "probable cause" standard of a warrant, which is required under the Fourth Amendment.
When law enforcement obtained CSLI through 2703(d) orders, they typically use CSLI records in investigations to pinpoint the location of individuals and create a map of their movements over time. For example, in United States v. Graham, the government compiled as much as 221 days' worth of CSLI, around 29,000 location data points generated per defendant, without a warrant. In Carpenter, the government obtained over five months of CSLI and used this data to create maps showing that the plaintiff's cell phone had been near four of the charged robberies.
Major telecommunication companies--such as Sprint, AT&T, Verizon, and T-Mobile-- have released transparency reports that include aggregate statistics about government requests for customers data. These reports, however, are neither comprehensive nor detailed enough to evaluate the full scope of law enforcement access to location data. The overall number of S 2703(d) orders cannot be assessed solely from these transparency reports because smaller telecommunications carriers do not publish transparency reporting.
CSLI and the Fourth Amendment After Carpenter
The Supreme Court in Carpenter v. United States considered the constitutionality of the Government's use of section 2703(d) orders to obtain CSLI. The Court ultimately held that cell phone location records are protected by the Fourth Amendment and that the "police must get a warrant when collecting CSLI to assist in the mine-run criminal investigation." The Court, however, left open the question of what legal process is required in emergencies or other unique situations.
The legal regime for law enforcement access to CSLI implicates privacy interests of nearly all U.S. persons. CSLI can reveal the most intimate details of everyday life: a trip to a place of worship, attendance at a political protest, or a visit to a medical specialist. Cell site location records obtained by the government are even more comprehensive than GPS records and this precision only increases with advancements in technology.
EPIC is interested in the DOJ's use of S 2703(d) orders for law enforcement investigations because the agency has never produced any comprehensive reports concerning the use of cell site data. Unlike the use of Wiretap Act authorities, which is subject to detailed reporting requirements, law enforcement use of cell site data is not subject to any comparable public accounting. EPIC submitted two Freedom of Information Act requests seeking the release of reports on the collect and use of cell site location information. As stated in EPIC's complaint, EPIC "seeks to determine the use, effectiveness, cost, and necessity in the collection and use of cell site location information so that the public, lawmakers, and the courts may have a better understanding of the use of this investigative technique."
U.S. District Court for the District of Columbia (No. 18-1814)
- EPIC Complaint (August 1, 2018)
- DOJ Answer (September 19, 2018)
- Joint Status Report (October 19, 2018)
- Debra Cassens Weiss, Supreme Court Rules Police Generally Need a Warrant to Get Cellphone Location Data, ABA Journal (June 22, 2018)
- Elie Mystal, Supreme Court Continues Its Modernization Campaign: Requires Warrants For Some Cell Phone Searches, Above The Law (June 22, 2018)
- Greg Stohr, U.S. Supreme Court Bolsters Mobile-Phone Privacy Rights, Bloomberg (June 22, 2018)
- Chris Geidner, The Supreme Court Rules That Police Generally Need A Warrant To Get Cell-Site Records, BuzzFeed News (June 22, 2018)
- Ariane de Vogue & Clare Foran, Supreme Court: Warrant Generally Needed to Track Cell Phone Location Data, CNN (June 22, 2018)
- Lyle Denniston, Supreme Court Justices Broaden Cellphone Privacy, Constitution Daily (June 22, 2018)
- Pete Williams, Supreme Court Says Police Can't Use Your Cellphone to Track You without a Court Order, NBC News (June 22, 2018)
- Tony Mauro & Marcia Coyle, Justices, in Nod to Privacy, Restrict Police Power to Obtain Mobile Phone Data, National Law Journal (June 22, 2018)
- Matt Ford, The Supreme Court Cares About Your Digital Privacy, New Republic (June 22, 2018)
- Adam Liptak, Defending Privacy, Supreme Court Says Warrants Are Generally Needed to Collect Cellphone Location Data, N.Y. Times (June 22, 2018)
- Alex Abdo & Dr. Kate Klonick, Opinion, The Supreme Court Takes On the Police Use of Cellphone Records, N.Y. Times (June 22, 2018)
- Barry Friedman, Opinion, The Worrisome Future of Policing Technology, N.Y. Times (June 22, 2018)
- Lawrence Hurley, Supreme Court Restricts Police on Cellphone Location Data, Reuters (June 22, 2018)
- Amy Howe, Opinion Analysis: Court Holds That Police Will Generally Need a Warrant for Sustained Cellphone Location Information, SCOTUSblog (June 22, 2018)
- Jonathan Turley, Privacy Prevails: Supreme Court Rules That Warrant Is Required For Cellphone Location Data (June 22, 2018)
- Richard Wolf, Supreme Court Cracks Down on Government Snooping Through Cellphone Location Records, USA Today (June 22, 2018)
- Orin Kerr, First Thoughts on Carpenter v. United States, Volokh Conspiracy (June 22, 2018)
- Brent Kendall & Jess Bravin, Police Need Warrant for Cellphone Location Data, Supreme Court Rules, Wall St. J. (June 22, 2018)
- Robert Barnes, Supreme Court Rules That Warrant is Needed to Access Cell Tower Records, Wash. Post (June 22, 2018)
- Elizabeth Slattery, Three Low-Profile Supreme Court Cases That Could Make High Impacts on Everyday Lives, The Washington Times (September 11, 2017)
- Simeon Beal, OWI Labs Op-Ed: Carpenter v. US & Fate of 4th Amendment in Digital Age, One World Identity (August 30, 2017)Lily Hay Newman, Verizon - Yes, Verizon - Just Stood Up For Your Privacy, WIRED (August 16, 2017)
- Orin Kerr, Podcast Debate on the Carpenter Cell-Site Case, The Washington Post (August 15, 2017)
- Sophia Morris, Apple, Others Tell Justices Cell-Site Info Requires Warrant, Law360 (August 15, 2017)
- Shayna Posses, Cell Location Searches Assailed In Raft Of High Court Briefs, Law360 (August 14, 2017)
- Allison Grande, Supreme Court Pushed To Protect Cell Location Records, Law360 (August 9, 2017)
- Orin Kerr, Symposium: Carpenter and the Eyewitness Rule, SCOTUSblog (August 4, 2017)
- Alan Butler, Symposium: Millions of tiny constables - Time to set the record straight on the Fourth Amendment and location-data privacy, SCOTUSblog (August 3, 2017)
- Jennifer Lynch, Symposium: Will the Fourth Amendment protect 21st-century data? The court confronts the third-party doctrine, SCOTUSblog (August 2, 2017)
- David LaBahn, Symposium: A defense of the doctrine, SCOTUSblog (August 2, 2017)
- John Castellano, Symposium: Justices poised to consider, or reconsider, Fourth Amendment doctrines as they assess the scope of privacy in a digital age, SCOTUSblog (August 1, 2017)
- Jim Harper, Symposium: Granular analysis versus doctrine in Carpenter, SCOTUSblog (August 1, 2017)
- Amy Howe, The justices return to cellphones and the Fourth Amendment: In Plain English, SCOTUSblog (July 31, 2017)
- Peter Henning, Digital Privacy to Come Under Supreme Court’s Scrutiny, N.Y. Times (July 10, 2017)
- Sherry Colb, Supreme Court Considers Whether to Grant Privacy to Cell Tower Location Records, Verdict Justia (June 21, 2017)
- Stephen Vladek, The Supreme Court Cell Phone Location Case Could Decide the Future of Privacy, Motherboard (June 16, 2017)
- Orin Kerr, Third Party Rights and the Carpenter Cell-Site Case, Washington Post (June 15, 2017)
- S.M., The Supreme Court will consider a mobile phone privacy case, Economist (June 9, 2017)
- Laura E. Jehl, Jonathan E. Meyer and Sonja S. Carlson, Supreme Court Reenters Fray on Privacy: Carpenter v. United States, National Law Review (June 9, 2017)
- The Supreme Court to Test the Boundaries Between Technology and Privacy, Background Briefing with Ian Masters (June 8, 2017) (interview with EPIC’s Marc Rotenberg)
- Jordan Brunner and Emma Kohse, Supreme Court Grants Cert in Carpenter v. United States: An Overview, Lawfare (June 6, 2017)
- Angelica Cabral, The Supreme Court Will Decide Whether Police Need a Warrant to Get Cellphone Location Data, Slate (June 5, 2017)
- Lydia Wheeler, Supreme Court takes up warrantless use of cellphone data, The Hill (June 5, 2017)
- Brady Dale, How an Armed Robber’s Supreme Court Defense Could Protect Everyone’s Email, Observer (June 5, 2017)
- Steven Nelson, Major Cellphone Privacy Case Accepted by Supreme Court, U.S. News (June 5, 2017)
- David G. Savage, Supreme Court will decide whether police can use cellphone data to track suspects, Los Angeles Times (June 5, 2017)
- Robert Barnes, Supreme Court to decide if a warrant is needed to track a suspect through cellphone records, Chicago Tribune (June 5, 2017)
- Adam Liptak, Supreme Court Agrees to Hear Cellphone Tracking Case, N.Y. Times (June 5, 2017)
- Orin Kerr, Supreme Court Agrees to hear ‘Carpenter v. United States,’ the Fourth Amendment historical cell-site case, Washington Post (June 5, 2017)
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