With the Edward Snowden leaks, revelations that the National Security Agency (NSA) covertly monitors the email and cell phone use of virtually every person in the world, and conflicting Federal court decisions about whether the NSA’s surveillance programs are constitutional, concerns about electronic privacy have become a permanent fixture in the American discussion. The social debate now rages about how much, if any, expectation of privacy individuals have in their electronic communications.


Last July the Fifth Circuit Court of Appeals, In re Application of the United States of America for Historical Cell Phone Data, lent significant fuel to this debate by becoming the first Federal circuit to find that “court orders” authorized by the Stored Communications Act (SCA) are not “per se unconstitutional.” The SCA is governed by 18 U.S.C. §§ 2701-2712.   It regulates disclosure of stored electronic communications by cell phone service providers.


Law enforcement agencies are increasingly finding a need to examine the “historical cell site data” and other subscriber information for cell phones belonging to suspected criminal (or terrorist) suspects. The SCA requires the Government seeking to compel disclosure of non-content records or other information to secure either a warrant or a court order directing a cell phone service provider to disclose the records/information. This is a hot-button issue both inside and outside the judicial arena.


The SCA provides that a court shall order cell phone service providers to disclose the “contents of a wire or electronic communication, or the records or other information sought, [which] are relevant and material to an ongoing criminal investigation” but only after the Government provides “specific and articulable facts” supporting the need for disclosure. Some courts have held that forcing cell phone service providers to disclose “historical cell site records” based merely on a showing of “specific and articulable facts,” rather than probable cause, violates the Fourth Amendment.


In the case before the Fifth Circuit, the opposing parties, the Government and the ACLU, focused their arguments on “distinct questions.” The ACLU hinged their argument on the premise that historical cell site data reveals “location information” and, therefore, should be controlled by Supreme Court “precedents on tracking devices” that violate the Fourth Amendment (such as a GPS device placed under a suspect’s vehicle). The Government, on the other hand, argued that since the cell phone services providers are the entities gathering the data, not the Government as they do with tracking devices, the records/information compiled by them are “business records” that have nothing to do with privacy protections guaranteed by the Fourth Amendment.


In effect, the ACLU argued that since most people carry cell phones on their person at virtually all times, governmental tracking is “more detailed and invasive.” The Government countered that “cell site data” is collected only when a call is made from a cell phone which is “just like a car ride” and, in fact, is less precise than a GPS location device because the data does not reveal whether the caller is in a “private location” like a home or is just walking down a public street.


The Government’s argument turned on the observations made by the Supreme Court in its 1967 precedent, United States v. Katz. There the court recognized that “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection … The Fourth Amendment cannot be translated into a general constitutional ‘right to privacy.’ The Amendment protects individual privacy against certain kinds of governmental intrusion … But the protection of a person’s general right to privacy – his right to be let alone by other people – is, like the protection and of his very life, left largely to the law of the individual States.”


For example, the Texas Legislature this past session passed a law which creates unprecedented email privacy protections, more than any other state in the nation. To access anyone’s emails in this state, law enforcement must secure a warrant based on probable cause evidence recognized under the Fourth Amendment.


The Fifth Circuit was not so progressive. The court concluded that cell phone service providers are third parties which can “store data … at its discretion.”


Thus, the information no longer belongs to the cell phone user once a call is made. It belongs to the service providers much like banking transaction records belong to the bank, not the depositor. Nearly three decades after Katz, the Supreme Court reaffirmed its longstanding position that once an individual exposes his information to a third party, it can be used for any purpose as “[i]t is established that, when a person communicates information to a third party even on the understanding that the communication is confidential, he cannot object if the third party conveys that information or records thereof to law enforcement authorities.”


By holding that historical cell site data in possession of cell phone service providers is a business record, the Fifth Circuit refused to follow the lead of the Sixth Circuit which, in 2010, held that “emails” are “communications between two subscribers, not information between the service provider and a subscriber that would qualify as business records.” In effect, since the service provider is merely an “intermediary,” law enforcement cannot compel disclosure of email communications “without first obtaining a warrant based on probable cause.”


The historical cell site data issue, therefore, boils down to a given court’s definition of what constitutes a “business record.” The Fifth Circuit said that “communications content, such as the contents of letters, phone calls, and emails, which are not directed to a business, but simply sent via that business, are generally protected. However, addressing information, which the business needs to route those communications appropriately and efficiently are not.”


Under this framework, the Fifth Circuit said historical cell site data is a business record. “The cell service provider collects and stores historical cell site data for its own business purposes,” the appeals court explained, “perhaps to monitor or optimize service on its network or to accurately bill its customers for the segments of its network they use. The Government does not require the service providers to record this information or store it.”


And that is the crux of the historical cell site data issue as seen by the Fifth Circuit. The Government has nothing to do with either the recording or storing process of this data. So law enforcement can come in “after the fact” and ask a provider to “turn over records the provider has already created”—information conveyed to the provider by the cell phone user; information the user knew was being conveyed to the service provider when he voluntarily made the calls.


As for Texans, the issue now is whether Texas lawmakers will extend the same privacy protections to cell phone users as it did for email senders. The issue, after all, is now a state legislative matter, not a Fourth Amendment concern, as the Fifth Circuit held.