Last week, the U.S. Court of Appeals for the Fifth Circuit held that the U.S. Constitution does not provide any protection against government access to cell phone location records—records that reveal the location and movement of every person with a cell phone.1 This latest decision in the developing law of cell phone location privacy takes a dangerous path that is insensitive to the new technological reality and that should not be followed by New York courts deciding the issue under the state Constitution.

At issue in the Fifth Circuit decision was the government's attempt to access 60 days of historical cell phone location records without a warrant. Every cell phone automatically generates these types of location records whenever they are on, in the form of signal and registration information with nearby cell towers. The government presumably wanted to access this information to map the user's movement over that 60-day period.

The Fifth Circuit decided that the government could access such records without a warrant. It relied on the "third-party doctrine," which has been applied in the past to diminish privacy in transactional information like phone dialing records and bank records that were deemed to be voluntarily given to and held by third parties.2 The Fifth Circuit held that cell phone location records were also transactional business records, and that people voluntarily gave up their privacy in their location by carrying a cell phone.

The court's approach to cell phone location records ignores that old doctrines may not work in the new world of technology. U.S. Supreme Court Justice Sonia Sotomayor explicitly warned of this in her concurrence in United States v. Jones, a case establishing the right to privacy against the surreptitious attachment of a GPS device to a personal car, cautioning that the third-party doctrine "is ill suited to the digital age."3 Advances in technology have put a mass of private information that can paint an intimate picture of a person's life in the hands of third parties.

Other federal court decisions, including from the Third Circuit and the Eastern District of New York, have shown more sensitivity to changing technology.4 These decisions have rejected the notion that the Fourth Amendment is irrelevant simply because cell phone location records are stored by third parties. Location records implicate highly private information, and such information should not lose constitutional protection just because they are processed by a third party.

Courts deciding the privacy of cell phone location records under the New York state Constitution have additional reasons not to follow the Fifth Circuit approach.

The New York Court of Appeals has been a step ahead of the U.S. Supreme Court on locational privacy, having clearly articulated a right to privacy in location information in People v. Weaver.5

In Weaver, faced with the warrantless use of a GPS device in a criminal case, the court recognized that such locational monitoring should not occur without judicial supervision because it reveals "with breathtaking quality and quantity…a highly detailed profile, not simply of where we go, but by easy inference, of our associations—political, religious, amicable and amorous, to name only a few—and of the pattern of our professional and avocational pursuits."

The Court of Appeals recently reaffirmed this right to locational privacy in Cunningham v. New York Dept. of Labor, unanimously holding that the state acted unreasonably in attaching a GPS device to an employee's private vehicle and tracking his movements continuously for a month in the course of a workplace investigation.6 (Attorneys from the New York Civil Liberties Union represented the petitioner in the case).

Weaver and Cunningham did not directly resolve the question whether the third-party doctrine would undermine a person's privacy in location information generated and stored by third-party providers, and some lower New York courts have held without significant analysis that Weaver does not apply to cell phone location tracking.7

But in this world where a great majority of people carry around cell phones, the protection against locational surveillance in Weaver and Cunningham would be meaningless if the government could circumvent it by simply asking cell phone companies for location information. The location records would reveal the same "highly detailed…pattern of our professional and avocational pursuits" that the Court of Appeals sought to protect from warrantless GPS surveillance.

Moreover, Cunningham paved the way for rejecting the rote application of old legal doctrines like the third-party doctrine to new contexts. In Cunningham, the court rejected the application of the ordinary suppression rule to GPS surveillance because of "the extraordinary capacity of a GPS device to permit '[c]onstant, relentless tracking of anything.'" Similarly, the third-party doctrine should not be applied to cellular technology, which makes possible constant, relentless, mass surveillance of everyone with cell phones without even the need to surreptitiously attach a GPS device.

During the Cunningham oral argument one justice asked a question about cell phone location records, suggesting the court's awareness that this issue is percolating through the courts. Weaver and Cunningham, not the Fifth Circuit decision, provide a roadmap for how the issue should be decided under the New York state Constitution.

Mariko Hirose is a staff attorney with the New York Civil Liberties Union, which represented the petitioner in 'Cunningham.'

Endnotes:

1. In re U.S. for Historical Cell Site Data, No. 11-20884, 2013 WL 3914484 (5th Cir. July 30, 2013).

2. Smith v. Maryland, 442 U.S. 735 (1979); United States v. Miller, 307 U.S. 174 (1939).

3. United States v. Jones, 132 S. Ct. 945, 957 (2012) (Sotomayor, J., concurring).

4. In re U.S. for an Order Directing a Provider of Elec. Commc'n Serv. to Disclose Records to Gov.., 620 F.3d 304 (3d Cir. 2010); In re U.S. for an Order Authorizing the Release of Historical Cell-Site Info., 809 F. Supp. 2d 113, 127 (E.D.N.Y. 2011); In re U.S. for an Order Authorizing the Release of Historical Cell-Site Info., No. 10 MC 0897, 2010 WL 5437209 (E.D.N.Y. Dec. 23, 2010).

5. 12 N.Y.3d 433 (2009).

6. 2013 N.Y. Slip Op. 04838, 2013 WL 3213347 (June 27, 2013).

7. See, e.g., People v. Hall, 86 A.D.3d 450 (1st Dept. 2011); People v. Moorer, 2013 NY Slip Op 23048 (Monroe County Feb. 8, 2013).