Fourth Amendment Protections Do Not Apply to Metadata Involving Wireless Communications
The Sixth Circuit recently found that metadata used to route communications on wireless phones are business records, created and maintained by wireless carriers. As such, the FBI’s possession of these materials, without a warrant, was not a search under the Fourth Amendment.
In April 2011, police arrested four men suspected of a series of armed robberies at Radio Shack and T-Mobile stores in and around Detroit, MI. One individual confessed to the crimes and provided the FBI with his cellphone number and the numbers of the other men alleged to be involved, including Timothy Carpenter and Michael Sanders.
In May and June 2011, the FBI applied for three orders, as opposed to warrant requests, from magistrate judges to obtain “transactional records” from wireless carriers for sixteen different phone numbers. The FBI stated these records included “[a]ll subscriber information, toll records and call detail records including listed and unlisted numbers dialed or otherwise transmitted to and from [the] target telephones from December 1, 2010 to present” and “cell site information for the target telephones at call origination and at call termination for incoming and outgoing calls.”
Pursuant to the Stored Communications Act (“the Act”), 18 U.S.C. § 2703(d), the magistrates granted the FBI’s applications. The Act permits the government to acquire certain telecommunications records when “specific and articulable facts show that there are reasonable grounds to believe the contents” are “relevant and material to an ongoing criminal investigation.”
The government charged Carpenter and Sanders with multiple counts of aiding and abetting robbery that affected interstate commerce, in violation of the Hobbs Act, and aiding and abetting the use or carriage of a firearm during a federal crime of violence. At trial, several accomplices testified that Carpenter and Sanders served as lookouts. They also said that Carpenter orchestrated the robberies. After each robbery, the team met to dispose of weapons, getaway vehicles, and to sell the stolen phones.
FBI agent Christopher Hess also offered expert testimony about the cell-site data provided by Carpenter’s and Sanders’s wireless carriers. He testified that wireless carriers typically store records regarding each call, including the date, time, and length of each call; the phone numbers communicating on each call; and the cell-sites where each call begins and ends. With the cell-site data gathered, Hess created maps to show that Carpenter’s and Sanders’s phones were within a half-mile to two miles of the location of each of the robberies around the time the robberies happened.
Carpenter and Sanders moved to suppress the government’s cell-site evidence on Fourth Amendment grounds, arguing that the records required a warrant supported by probable cause. The district court rejected this argument, holding that the government’s collection of cell-site records created and maintained by Carpenter’s and Sanders’s wireless carriers was not a search. A jury convicted Carpenter and Sanders on the Hobbs Act charges as well as Carpenter on several of the firearm charges. Carpenter and Sanders appealed the district court’s denial of their motion to exclude the cell-site data to the U.S. Court of Appeals for the Sixth Circuit.
Carpenter and Sanders, along with their amicus, the American Civil Liberties Union, contended that the Supreme Court’s decision in United States v. Jones, 132 S. Ct., 945 (2012), required the court of appeals to find the cell-site data protected. In Jones, it was suggested that long-term GPS monitoring impinges on the expectations of privacy. The court of appeals disagreed, stating that the government action in Jones is very different from the action taken in the present matter. In Jones, government agents attached a GPS device to the defendant’s vehicle and monitored his movements, a physical intrusion not present here. Also, GPS devices are accurate within about fifty feet – accurate enough to show an individual is located in a specific building. In contrast, the cell-site data extends between one-half to two miles in length.
Rather, the court of appeals found the Supreme Court decision in Smith v. Maryland, 442 U.S. 735 (1979), applicable to the cell-site data. According to the court of appeals, Smith held that the content of personal communications is private while the information necessary to transfer those communications is not. In Smith, the Supreme Court found that police installation of a pen register does not mean they acquired the contents of the communications made, but acquired the phone numbers dialed as a means of establishing communications. Thus, the Court stated the pen register was not a search because the caller could not reasonably expect the numbers dialed to remain private.
Though Federal courts have held that the Fourth Amendment protects the content of communications made on the internet, like emails, they have not extended those protections to the metadata used to route internet communications, such as sender and recipient addresses on emails, or IP addresses. Here, the court of appeals declined to extend the protections of the Fourth Amendment to means of tracking wireless communications. Like in Smith, the court of appeals found that the cell-site data in question, which included mailing addresses, phone numbers, and IP addresses, was information that facilitated personal communications, rather than part of the content of those communications themselves.
Further, the court of appeals explained that Carpenter and Sanders lacked any property interest in the cell-site records created and maintained by their wireless carriers. In Smith, the Court observed that the defendant could not claim that his “property” was invaded by the government, meaning he could not claim any property-based protection under the Fourth Amendment. The court stated that Carpenter and Sanders should have known that their cellphones signal the nearest cell towers when establishing communication and their wireless carriers recorded this information for a variety of legitimate business purposes.
As such, the court of appeals held that the government’s collection of business records containing cell-site data was not a search under the Fourth Amendment.
Read the full case: United States v. Carpenter
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Posted in Case Law Update
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