Cell Phone Location Tracking, Exams of Law

Download Cell Phone Location Tracking and more Exams Law in PDF only on Docsity! * This primer was prepared in partnership with the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley, School of Law with the assistance of Bhairav Acharya, Richa Goyal, and Jaideep Reddy. Cell Phone Location Tracking A National Association of Criminal Defense Lawyers (NACDL) Primer* HOW IS A CELL PHONE’S LOCATION IDENTIFIED? A cell phone’s location can be detected through cell site location information (CSLI) or global positioning system (GPS) data. CSLI refers to the information collected as a cell phone identifies its location to nearby cell towers. 1 CSLI from nearby cell towers can indicate a cell phone’s approximate location. 2 With information from multiple cell towers, a technique called “triangulation” is used to locate a cell phone with greater precision. 3 A cell phone’s GPS capabilities allow it to be tracked to within 5 to 10 feet. 4 Cell phone location information can be “historical” or “prospective.” 5 In addition to the location information cell phones ordinarily generate, a cell phone may be “pinged” to force it to reveal its location. 6 HOW IS CELL PHONE LOCATION INFORMATION USED? Cell phone companies store historical and prospective CSLI and prospective GPS data, 7 which law enforcement authorities can request from them through court processes. 8 Historical CSLI enables law enforcement to piece together past events, 9 for example, by connecting a suspect to the location of a past crime. Prospective location information, on the other hand, helps law enforcement trace the current whereabouts of a suspect, which can lead to arrest. 10 JUDICIAL AUTHORIZATION Law enforcement has relied on a variety of statutory regimes to obtain cell phone location information: Regime Type of Information Sought Legal Standard Applied by Court Order under 18 U.S.C. § 2703(d) (Stored Communications Act (SCA), 18 U.S.C. § 2701 et. seq.) Historical location information11 and, more rarely, prospective location information.12 “[S]pecific and articulable facts” showing that the information sought is “relevant and material to an ongoing criminal investigation.”13 Order under “Hybrid” authority of the SCA and the Pen / Trap Statute, 18 U.S.C. §§ 3121 - 3127.14 Prospective location information. The SCA standard above, combined with the the Pen / Trap Statute’s requirement “that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.”15 Warrant under Fed. R. Crim. P. 4116 All location information. Probable cause.17 1 Eric Lode, Validity of Use of Cellular Telephone or Tower to Track Prospective, Real Time, or Historical Position of Possessor of Phone Under Fourth Amendment, 92 A.L.R. Fed. 2d 1, *2 (2015). 2 The accuracy of location information from a single tower varies from “a few blocks to several square miles.” Jerry Grant, Cell Site Analysis (Live Demo), Federal Public Defender’s Office Training Materials, 10 (Mar. 7, 2015), https://www.fd.org/docs/training-materials/2015/tecm2014/plenary-materials/cell-site-analysis- %28jerry-grant%29/cell-site-analysis---grant.pdf?sfvrsn=6; see also United States v. Davis, 785 F.3d 498, 501-02 (11th Cir. 2015) (en banc). 3 Grant, supra note 2; see also In re Tel. Info. Needed for a Crim. Investigation, 119 F.Supp.3d 1011, 1015 (N.D. Cal. 2015). 4 Grant, supra note 2. 5 Historical location information refers to “records stored by the wireless service provider that detail the location of a cell phone in the past (i.e.: prior to entry of the court order authorizing government acquisition).” Prospective location information refers to “all cell site information that is generated after the government has received court permission to acquire it.” You may also come across the term “real time” location information. This is a subset of prospective location information, and “refers to data used by the government to identify the location of a phone at the present moment.” In re United States ex. rel. an Order Authorizing the Installation & Use of a Pen Register, 402 F. Supp. 2d 597, 599 (D. Md. 2005). 6 Stephanie K. Pell and Christopher Soghoian, Can You See Me Now? Toward Reasonable Standards for Law Enforcement Access to Location Data That Congress Could Enact, 27 Berkeley Tech. L.J. 117, 131-2 (2012) (explaining how cell phone companies and law enforcement can cooperate to generate ping data). 7 Lode, supra note 1, at *2, *5. It is unclear whether phone companies store historical GPS information. 8 See infra Judicial Authorization. Law enforcement can also obtain location information on its own, bypassing the phone companies, by using devices called cell site simulators. This capability is discussed in NACDL’s Cell Site Simulators primer. 9 E.g., Davis, 785 F.3d at 501. 10 E.g., United States v. Skinner, 690 F.3d 772, 776 (6th Cir. 2012). 11 E.g., United States v. Graham, No. 12-4659, 2016 U.S. App. LEXIS 9797 (4th Cir. May 31, 2016) (en banc); Davis, 785 F.3d at 500, 502. 12 State v. Perry, 776 S.E.2d 528, 534 (N.C. Ct. App. 2015) (collecting cases). 13 18 U.S.C. § 2703(d). 14 See In re United States of Am. for an Order Authorizing Prospective & Continuous Release of Cell Site Location Records, 31 F. Supp. 3d 889, 899-900 (S.D. Tex. 2014) (collecting cases); see also In re United States for an Order Authorizing the Use of Two Pen Register & Trap & Trace Devices, 632 F. Supp. 2d 202, 205-6 (E.D.N.Y. 2008) (explaining the hybrid theory). 15 18 U.S.C. § 3122(b)(2). 16 Office of the Federal Public Defender - Northern District of California, Location and Cell Phone Tracking: Technology, Law, and Defense Strategy, 28, http://www.ndcalfpd.org/2013_CJA/cell_phone_tracking.pdf (last visited Mar. 31, 2016). 17 Fed. R. Crim. P. 41.