paulohm.com of... · Web viewA beeper is a radio transmitter, usually battery operated, which emits periodic signals that can be picked up by a radio receiver. In this case, a beeper

Technology of PrivacyProfessor Ohm

Reader on Geolocation Tracking Technologyand the Fourth Amendment

in the Supreme Court

Contents

United States v. Knotts, 460 U.S. 276 (1983)............................................................2

United States v. Karo.................................................................................................6

United States v. Jones...............................................................................................8

Brief of Petitioners, Carpenter v. United States.......................................................15

Brief of United States, Carpenter v. United States..................................................29

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460 U.S. 276 (1983)UNITED STATES

v.KNOTTS

REHNQUIST, Justice.A beeper is a radio transmitter, usually battery operated, which emits periodic signals that can be picked up by a radio receiver. In this case, a beeper was placed in a five gallon drum containing chloroform purchased by one of respondent’s codefendants. By monitoring the progress of a car carrying the chloroform Minnesota law enforcement agents were able to trace the can of chloroform from its place of purchase in Minneapolis, Minnesota to respondent’s secluded cabin near Shell Lake, Wisconsin.

Suspicion attached to this trio when the 3M Company, which manufactures chemicals in St. Paul, notified a narcotics investigator for the Minnesota Bureau of Criminal Apprehension that Armstrong, a former 3M employee, had been stealing chemicals which could be used in manufacturing illicit drugs. Visual surveillance of Armstrong revealed that after leaving the employ of 3M Company, he had been purchasing similar chemicals from the Hawkins Chemical Company in Minneapolis. The Minnesota narcotics officers observed that after Armstrong had made a purchase, he would deliver the chemicals to codefendant Petschen. With the consent of the Hawkins Chemical Company, officers installed a beeper inside a five gallon container of chloroform, one of the so-called “precursor” chemicals used to manufacture illicit drugs. Hawkins agreed that when Armstrong next purchased chloroform, the chloroform would be placed in this particular container. When Armstrong made the purchase, officers followed the car in which the chloroform had been placed, maintaining contact by using both visual surveillance and a monitor which received the signals sent from the beeper. Armstrong proceeded to Petschen’s house, where the container was transferred to Petschen’s automobile. Officers then followed that vehicle eastward towards the state line, across the St. Croix River, and into Wisconsin. During the latter part of this journey, Petschen began making evasive maneuvers, and the pursuing agents ended their visual surveillance. At about the same time officers lost the signal from the beeper, but with the assistance of a monitoring device located in a helicopter the approximate location of the signal was picked up again about one hour later. The signal now was stationary and the location identified was a cabin occupied by respondent near Shell Lake, Wisconsin. The record before us does not reveal that the beeper **1084 was used after the *279 location in the area of the cabin had been initially determined. Relying on the location of the chloroform derived through the use of the beeper and additional information obtained during three days of intermittent visual

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surveillance of respondent’s cabin, officers secured a search warrant. During execution of the warrant, officers discovered a fully operable, clandestine drug laboratory in the cabin. In the laboratory area officers found formulas for amphetamine and methamphetamine, over $10,000 worth of laboratory equipment, and chemicals in quantities sufficient to produce 14 pounds of pure amphetamine. Under a barrel outside the cabin, officers located the five gallon container of chloroform.

The governmental surveillance conducted by means of the beeper in this case amounted principally to the following of an automobile on public streets and highways. We have commented more than once on the diminished expectation of privacy in an automobile:

“One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.” A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When Petschen travelled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was travelling over particular *282 roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property. Respondent Knotts, as the owner of the cabin and surrounding premises to which Petschen drove, undoubtedly had the traditional expectation of privacy within a dwelling place insofar as the cabin was concerned. But no such expectation of privacy extended to the visual observation of Petschen’s automobile arriving on his premises after leaving a public highway, nor to movements of objects such as the drum of chloroform outside the cabin in the “open fields.” Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924). Visual surveillance from public places along Petschen’s route or adjoining Knotts’ premises would have sufficed to reveal all of these facts to the police. The fact that the officers in this case relied not only on visual surveillance, but on the use of the beeper to signal the presence of Petschen’s automobile to the police receiver, does not alter the situation. Nothing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case. In United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927), the Court said:

*283 “But no search on the high seas is shown. The testimony of the boatswain shows that he used a searchlight. It is not shown that there was any exploration below decks or under hatches. For aught that appears, the cases of liquor were on deck and, like the defendants, were discovered before the motor boat was

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boarded. Such use of a searchlight is comparable to the use of a marine glass or a field glass. It is not prohibited by the Constitution.” Id., at 563, 47 S.Ct., at 748. Respondent does not actually quarrel with this analysis, though he expresses the generalized view that the result of the holding sought by the government would be that “twenty-four hour surveillance of any citizen of this country will be possible, without judicial knowledge or supervision.” Br. for Resp., at 9 (footnote omitted). But the fact is that the “reality hardly suggests abuse,” Zurcher v. Stanford *284 Daily, 436 U.S. 547, 566, 98 S.Ct. 1970, 1982, 56 L.Ed.2d 525 (1978); if such dragnet type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable. Ibid. Insofar as respondent’s complaint appears to be simply that scientific devices such as the beeper enabled the police to be more effective in detecting crime, it simply has no constitutional foundation. We have never equated police efficiency with unconstitutionality, and we decline to do so now. Respondent specifically attacks the use of the beeper insofar as it was used to determine that the can of chloroform had come to rest on his property at Shell Lake, Wisconsin. He repeatedly challenges the “use of the beeper to determine the location of the chemical drum at Respondent’s premises,” Br. for Resp., at 26; he states that “[t]he government thus overlooks the fact that this case involves the sanctity of Respondent’s residence, which is accorded the greatest protection available under the Fourth Amendment.” Ibid. The Court of Appeals appears to have rested its decision on this ground:

“As noted above, a principal rationale for allowing warrantless tracking of beepers, particularly beepers in or on an auto, is that beepers are merely a more effective means of observing what is already **1087 public. But people pass daily from public to private spheres. When police agents track bugged personal property without first obtaining a warrant, they must do so at the risk that this enhanced surveillance, intrusive at best, might push fortuitously and unreasonably into the private sphere protected by the Fourth Amendment.” Pet., at 6a. [6] We think that respondent’s contentions, and the above quoted language from the opinion of the Court of Appeals, to some extent lose sight of the limited use which the government made of the signals from this particular beeper. As we have noted, nothing in this record indicates that the beeper *285 signal was received or relied upon after it had indicated that the drum containing the chloroform had ended its automotive journey at rest on respondent’s premises in rural Wisconsin. Admittedly, because of the failure of the visual surveillance, the beeper enabled the law enforcement officials in this case to ascertain the ultimate resting place of the chloroform when they would not have been able to do so had they relied solely on their naked eyes. But scientific enhancement of this sort raises no constitutional issues which visual surveillance would not also raise. A police car following Petschen at a distance throughout his journey could have observed him leaving

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the public highway and arriving at the cabin owned by respondent, with the drum of chloroform still in the car. This fact, along with others, was used by the government in obtaining a search warrant which led to the discovery of the clandestine drug laboratory. But there is no indication that the beeper was used in any way to reveal information as to the movement of the drum within the cabin, or in any way that would not have been visible to the naked eye from outside the cabin. Just as notions of physical trespass based on the law of real property were not dispositive in Katz, supra, neither were they dispositive in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed.2d 898 (1924). We thus return to the question posed at the beginning of our inquiry in discussing Katz, supra; did monitoring the beeper signals complained of by respondent invade any legitimate expectation of privacy on his part? For the reasons previously stated, we hold they did not. Since they did not, there was neither a “search” nor a “seizure” within the contemplation of the Fourth Amendment. The judgment of the Court of Appeals is therefore Reversed.

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v.KARO

WHITE, J.In August 1980 Agent Rottinger of the Drug Enforcement Administration (DEA) learned that respondents James Karo, Richard Horton, and William Harley had ordered 50 gallons of ether from Government informant Carl Muehlenweg of Graphic Photo Design in Albuquerque, N.M. Muehlenweg told Rottinger that the ether was to be used to extract cocaine from clothing that had been imported into the United States. The Government obtained a court order authorizing the installation and monitoring of a beeper in one of the cans of ether. With Muehlenweg’s consent, agents substituted their own can containing a beeper for one of the cans in the shipment and then had all 10 cans painted to give them a uniform appearance.On September 20, 1980, agents saw Karo pick up the ether from Muehlenweg. [Facts about several months of intermittent public street tracking of the beeper omitted.] At about 6 p.m. on February 6, the car and the pickup left the driveway and traveled along public highways to Taos. When the vehicles arrived at a house in Taos rented by Horton, Harley, and Michael Steele, the agents did not maintain tight surveillance for fear of detection. When the vehicles left the Taos residence, agents determined, using the beeper monitor that the beeper can was still inside the house. Again on February 7, the beeper revealed that the ether can was still on the premises. At one point, agents noticed that the windows of the house were wide open on a cold windy day, leading them to suspect that the ether was being used. On February 8, the agents applied for and obtained a warrant to search the Taos residence based in part on information derived through use of the beeper. The warrant was executed on February 10, 1981, and Horton, Harley, Steele, and Evan Roth were arrested, and cocaine and laboratory equipment were seized.Here, there is no gainsaying that the beeper was used to locate the ether in a specific house in Taos, N.M., and that that information was in turn used to secure a warrant for the search of the house. This case thus presents the question whether the monitoring of a beeper in a private residence, a location not open to visual surveillance, violates the Fourth Amendment rights of those who have a justifiable interest in the privacy of the residence. Contrary to the submission of the United States, we think that it does.At the risk of belaboring the obvious, private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable. Our cases have not deviated from this basic Fourth

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Amendment principle. Searches and *715 seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances. In this case, had a DEA agent thought it useful to enter the Taos residence to verify that the ether was actually in the house and had he done so surreptitiously and without a warrant, there is little doubt that he would have engaged in an unreasonable search within the meaning of the Fourth Amendment. For purposes of the Amendment, the result is the same where, without a warrant, the Government surreptitiously employs an electronic device to obtain information that it could not have obtained by observation from outside the curtilage of the house. The beeper tells the agent that a particular article is actually located at a particular time in the private residence and is in the possession of the person or persons whose residence is being watched. Even if visual surveillance has revealed that the article to which the beeper is attached has entered the house, the later monitoring not only verifies the officers’ observations but also establishes that the article remains on the premises. Here, for example, the beeper was monitored for a significant period after the arrival of the ether in Taos and before the application for a warrant to search.

The monitoring of an electronic device such as a beeper is, of course, less intrusive than a full-scale search, but it does reveal a critical fact about the interior of the premises that the Government is extremely interested in knowing and that it could not have otherwise obtained without a warrant. The case is thus not like Knotts, for there the beeper told the authorities nothing about the interior of Knotts’ cabin. The information obtained in Knotts was “voluntarily conveyed to anyone who wanted to look ...,” ; here, as we have said, the monitoring indicated that the beeper was inside the house, a fact that could not have been visually verified. In sum, we discern no reason for deviating from the general rule that a search of a house should be conducted pursuant to a warrant.5

The judgment of the Court of Appeals is accordinglyReversed.

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v.JONES

SCALIA, J.

In 2004 respondent Antoine Jones, owner and operator of a nightclub in the District of Columbia, came under suspicion of trafficking in narcotics and was made the target of an investigation by a joint FBI and Metropolitan Police Department task force. Officers employed various investigative techniques, including visual surveillance of the nightclub, installation of a camera focused on the front door of the club, and a pen register and wiretap covering Jones’s cellular phone. Based in part on information gathered from these sources, in 2005 the Government applied to the United States District Court for the District of Columbia for a warrant authorizing the use of an electronic tracking device on the Jeep Grand Cherokee registered to Jones’s wife. A warrant issued, authorizing installation of the device in the District of Columbia and within 10 days. On the 11th day, and not in the District of Columbia but in Maryland,1 agents installed a GPS tracking device on the undercarriage of the Jeep while it was parked in a public parking lot. Over the next 28 days, the Government used the device to track the vehicle’s movements, and once had to replace the device’s battery when the vehicle was parked in a different public lot in Maryland. By means of signals from multiple satellites, the device established the vehicle’s location within 50 to 100 feet, and communicated that location by cellular phone to a Government computer. It relayed more than 2,000 pages of data over the 4–week period.

It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a *405 “search” within the meaning of the Fourth Amendment when it was adopted. Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765), is a “case we have described as a ‘monument of English freedom’ ‘undoubtedly familiar’ to ‘every American statesman’ at the time the Constitution was adopted, and considered to be ‘the true and ultimate expression of constitutional law’ ” with regard to search and seizure. In that case, Lord Camden expressed in plain terms the significance of property rights in search-and-seizure analysis:

“[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.” Entick, supra, at 817.

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The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to “the right of the people to be secure against unreasonable searches and seizures”; the phrase “in their persons, houses, papers, and effects” would have been superfluous. Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century. Thus, in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), we held that wiretaps attached to telephone wires on the public streets did not constitute a Fourth Amendment search because “[t]here was no entry of the houses or offices of the defendants,” id., at 464, 48 S.Ct. 564. Our later cases, of course, have deviated from that exclusively property-based approach. In *406 Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)we said that “the Fourth Amendment protects people, not places,” and found a violation in attachment of an eavesdropping device to a public telephone booth. Our later cases have applied the analysis of Justice Harlan’s concurrence in that case, which said that a violation occurs when government officers violate a person’s “reasonable expectation of privacy,” The Government contends that the Harlan standard shows that no search occurred here, since Jones had no “reasonable expectation of privacy” in the area of the Jeep accessed by Government agents (its underbody) and in the locations of the Jeep on the public roads, which were visible to all. But we need not address the Government’s contentions, because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” As explained, for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates. Katz did not *407 repudiate that understanding. The Government contends that several of our post-Katz cases foreclose the conclusion that what occurred here constituted a search. It relies principally on two cases in which we rejected Fourth Amendment challenges to “beepers,” electronic tracking devices that represent another form of electronic monitoring. The first case, Knotts, upheld against Fourth Amendment challenge the use of a “beeper” that had been placed in a container of chloroform, allowing law enforcement to monitor the location of the container. We said that there had been no infringement of Knotts’ reasonable expectation of privacy since the information obtained—the location of the automobile carrying *409 the container on public roads, and the location of the off-loaded container in open fields near Knotts’ cabin—had been voluntarily conveyed to the **952 public. But as we have discussed, the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test. The holding in Knotts addressed only the former, since the latter was not at issue. The beeper had been placed in the container

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before it came into Knotts’ possession, with the consent of the then-owner. 460 U.S., at 278, 103 S.Ct. 1081. Knotts did not challenge that installation, and we specifically declined to consider its effect on the Fourth Amendment analysis. Knotts would be relevant, perhaps, if the Government were making the argument that what would otherwise be an unconstitutional search is not such where it produces only public information. The Government does not make that argument, and we know of no case that would support it. The second “beeper” case, United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), does not suggest a different conclusion. There we addressed the question left open by Knotts, whether the installation of a beeper in a container amounted to a search or seizure. As in Knotts, at the time the beeper was installed the container belonged to a third party, and it did not come into possession of the defendant until later. Thus, the specific question we considered was whether the installation “with the consent of the original owner constitute[d] a search or seizure ... when the container is delivered to a buyer having no knowledge of the presence of the beeper.” We held not. The Government, we said, came into physical contact with the container only before it belonged to the defendant *410 Karo; and the transfer of the container with the unmonitored beeper inside did not convey any information and thus did not invade Karo’s privacy. That conclusion is perfectly consistent with the one we reach here. Karo accepted the container as it came to him, beeper and all, and was therefore not entitled to object to the beeper’s presence, even though it was used to monitor the container’s location. Jones, who possessed the Jeep at the time the Government trespassorily inserted the information-gathering device, is on much different footing. The judgment of the Court of Appeals for the D.C. Circuit is affirmed. It is so ordered.

Justice SOTOMAYOR, concurring.

I join the Court’s opinion because I agree that a search within the meaning of the Fourth Amendment occurs, at a minimum, “[w]here, as here, the Government obtains information by physically intruding on a constitutionally protected area.” Of course, the Fourth Amendment is not concerned only with trespassory intrusions on property. As the majority’s opinion makes clear, however, Katz ‘s reasonable-expectation-of-privacy test augmented, but did not displace or diminish, the common-law trespassory test that preceded it. Nonetheless, as Justice ALITO notes, physical intrusion is now unnecessary to many forms of surveillance. With increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS-enabled smartphones. In cases of

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electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion’s trespassory test may provide little guidance. But “ [s]ituations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.” As Justice ALITO incisively observes, the same technological advances that have made possible nontrespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations. Under that rubric, I agree with Justice ALITO that, at the very least, “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” In cases involving even short-term monitoring, some unique attributes of GPS surveillance relevant to the Katz analysis will require particular attention. GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. See, e.g., People v. Weaver, 12 N.Y.3d 433, 441–442, 882 N.Y.S.2d 357, 909 N.E.2d 1195, 1199 (2009) (“Disclosed in [GPS] data ... will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on”). The **956 Government can store such records and efficiently mine them for information years into the future. Pineda–Moreno, 617 F.3d, at 1124 (opinion of Kozinski, C.J.). And because GPS monitoring is *416 cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: “limited police resources and community hostility.” Illinois v. Lidster, 540 U.S. 419, 426, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004). Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may “alter the relationship between citizen and government in a way that is inimical to democratic society.” United States v. Cuevas–Perez, 640 F.3d 272, 285 (C.A.7 2011) (Flaum, J., concurring). I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. I do not regard as dispositive the fact that the Government might obtain the fruits of GPS monitoring through lawful conventional surveillance techniques. I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse,

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especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent “a *417 too permeating police surveillance,”

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U.S., at 742, 99 S.Ct. 2577; United States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) . This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as Justice ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” post, *418 at 962, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. See Smith, 442 U.S., at 749, 99 S.Ct. 2577 (Marshall, J., dissenting) (“Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes”); see also Katz, 389 U.S., at 351–352, 88 S.Ct. 507 (“[W]hat [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected”). Justice ALITO, with whom Justice GINSBURG, Justice BREYER, and Justice KAGAN join, concurring in the judgment.

This case requires us to apply the Fourth Amendment’s prohibition of unreasonable searches and seizures to a 21st-century surveillance technique, the use of a Global Positioning System (GPS) device to monitor a vehicle’s movements for an extended period of time. Ironically, the Court has chosen to decide this case based on 18th-century tort law. By attaching a small GPS device1 to the underside of the *419 vehicle that respondent drove, the law enforcement officers in this case engaged in conduct that might have provided grounds in 1791 for a suit for trespass to chattels.2 And for this reason, the Court concludes, **958 the installation and use of the GPS device constituted a search. Ante, at 948 – 949. This holding, in my judgment, is unwise. It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and

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http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1967129584&pubNum=0000708&originatingDoc=I0fda9f29444a11e18da7c4363d0963b0&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)





it is highly artificial. Recent years have seen the emergence of many new devices that permit the monitoring of a person’s movements. In some locales, closed-circuit television video monitoring is becoming ubiquitous. On toll roads, automatic toll collection systems create a precise record of the movements of motorists who choose to make use of that convenience. Many motorists purchase cars that are equipped with devices that permit a central station to ascertain the car’s location at any time so that roadside assistance may be provided if needed and the car may be found if it is stolen. Perhaps most significant, cell phones and other wireless devices now permit wireless carriers to track and record the location of users—and as of June 2011, it has been reported, there were more than 322 million wireless devices in use in the United States.8 For older phones, the accuracy of the location information depends on the density of the tower network, but new “smart phones,” which are equipped with a GPS device, permit more precise tracking. For example, when a user activates the GPS on such a phone, a provider is able to monitor the phone’s location and speed of movement and can then report back real-time traffic conditions after combining (“crowdsourcing”) the speed of all such *429 phones on any particular road.9 Similarly, phone-location-tracking services are offered as “social” tools, allowing consumers to find (or to avoid) others who enroll in these services. The availability and use of these and other new devices will continue to shape the average person’s expectations about the privacy of his or her daily movements.

In the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical. Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken. The surveillance at issue in this case—constant monitoring of the location of a vehicle for four weeks—would have required a large team of agents, multiple vehicles, and perhaps aerial assistance.10 Only an investigation of unusual importance could have justified such an expenditure of law enforcement **964 resources. Devices like the one used in the present case, however, make long-term monitoring relatively easy and cheap. In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative. A legislative body is well situated to gauge changing public attitudes, to draw detailed *430 lines, and to balance privacy and public safety in a comprehensive way. To date, however, Congress and most States have not enacted statutes regulating the use of GPS tracking technology for law enforcement purposes. The best that we can do in this case is to apply existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated. Under this approach, relatively short-term monitoring of a person’s movements on

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public streets accords with expectations of privacy that our society has recognized as reasonable. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4–week mark. Other cases may present more difficult questions. But where uncertainty exists with respect to whether a certain period of GPS surveil lance is long enough to constitute a Fourth Amendment search, the police may always seek a warrant.11 *431 We also need not consider whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy. In such cases, long-term tracking might have been mounted using previously available techniques. For these reasons, I conclude that the lengthy monitoring that occurred in this case constituted a search under the Fourth Amendment. I therefore agree with the majority that the decision of the Court of Appeals must be affirmed.

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2017 WL 3575179 (U.S.) (Appellate Brief)Supreme Court of the United States.

Timothy Ivory CARPENTER, Petitioner,v.

UNITED STATES OF AMERICA, Respondent.

No. 16-402.August 7, 2017.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Brief for Petitioner

QUESTION PRESENTED

Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.

STATEMENT OF THE CASE1. This case concerns governmental acquisition of personal location records,

known as cell site location information (“CSLI”), to identify Petitioner Timothy Carpenter’s whereabouts over more than four months. The records, which are logged and retained by cellular service providers whenever people carry modern cell phones, make it possible to reconstruct in detail everywhere an individual has traveled over hours, days, weeks, or months.

In order to access the cellular network, cell phones must connect to nearby cell towers (known as “cell sites”), thereby creating a record of the phone’s location. The precision of a cell phone user’s location reflected in CSLI records depends on the size of the cell site “sectors” in the area. Most cell sites consist of multiple directional antennas that divide the cell site into sectors. Pet. App. 5a. The majority of cell sites comprise three directional antennas that divide the cell site into three sectors (usually 120 degrees each), but an increasing number of towers have six antennas (covering approximately 60 degrees each). Pet. App. 14a; see also Joseph Hoy, Forensic Radio Survey Techniques for Cell Site Analysis 61 (2015). The coverage area of each cell site sector is smaller in areas with greater density of cell sites, with urban areas having the greatest density and thus the smallest coverage areas. Pet. App. 5a; see also Pet. App. 87a (Gov’t Trial Ex. 57, at 13) (providing maps of MetroPCS and Sprint cell sites). The smaller the coverage area, the more precise the location information revealed and recorded.

The density of cell sites continues to increase as data usage from smartphones grows. Because each cell site carries a fixed volume of data required for text messages, emails, web browsing, streaming video, and other uses, as

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smartphone data usage increases, carriers erect additional cell sites, each covering smaller geographic areas. See CTIA, Annual Wireless Industry Survey 4 (2017)1 (number of cell sites in the United States increased from 195,613 to 308,334 from 2006 to 2016); id. at 3 (annual wireless data usage increased more than 3,500 percent from 2010 to 2016). This means that in urban and dense suburban areas like Detroit, many sectors cover small geographic areas. Pet. App. 5a.

Service providers have long retained location information for the start and end of incoming and outgoing calls. Pet. App. 5a-6a. Today, those companies increasingly also retain location information related to the transmission of text messages and routine internet connections—which smartphones make virtually constantly to check for new emails, social media messages, weather updates, and other functions. See Craig Silliman, Exec. Vice President, Pub. Pol’y & Gen. Counsel, Verizon, Technology and Shifting Privacy Expectations, Bloomberg Law, Oct. 7, 2016.2 The information recorded can include not only cell site and sector, but also estimated distance of the phone from the nearest cell site. Id. Location precision is also increasing as service providers deploy millions of “small cells,” “which cover a very specific area, such as one floor of a building, the waiting room of an office, or a single home.” United States v. Graham, 824 F.3d 421, 448 (4th Cir. 2016) (en banc) (Wynn, J., dissenting in part and concurring in the judgment) (citation omitted); see also Hoy, supra, at 69-70.

All told, a typical smartphone connects to cell towers hundreds of times a day, generating a densely pixelated matrix of data points documenting the user’s movements. The volume and precision of that data will grow steadily in coming years, generating ever more granular locational information.

2. In 2011, officers from the Detroit Police Department arrested four individuals they thought had robbed Radio Shack and T-Mobile stores in Detroit, Michigan. Pet. App. 53a. One of the arrestees “admitted he had a role in eight different robberies that started in December of 2010 and lasted through March of 2011 at Radio Shack and T-Mobile stores in Michigan and Ohio. . . . The [arrestee] identified 15 other individuals who had been involved in at least one of the eight robberies.” Pet. App. 53a-54a.

An Assistant United States Attorney then submitted three applications for orders to access 152 days of historical cell phone location records for Timothy Carpenter and several other suspects. Pet. App. 3a, 49a-55a, 62a-68a. The applications, which were unsworn, did not seek warrants based on probable cause, but rather orders under a 1986 law, the Stored Communications Act (“SCA”), 18 U.S.C. § 2703(d). SCA orders may issue when the government “offers specific and articulable facts showing that there are reasonable grounds to believe that” the records sought “are relevant and material to an ongoing criminal investigation.” Id. 1 https://www.ctia.org/docs/default-source/default-document-library/annual-year-end-2016-top-line-survey-results-final.pdf.2 https://bol.bna.com/technology-and-shifting-privacy-expectations-perspective.

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The primary application at issue here asserted that “the requested records will assist in identifying and locating the other individuals believed to be involved in the armed robberies” and “provide evidence that . . . Timothy Carpenter and other known and unknown individuals are violating provisions of Title 18, United States Code, §1951.” Pet. App. 54a. The application sought “[a]ll subscriber information, toll records and call detail records . . . from [the] target telephones from December 1, 2010 to present[,]” as well as “cell site information for the target telephones at call origination and at call termination for incoming and outgoing calls[.]” Pet. App. 4a (some alterations in original); see also Pet. App. 52a.

All told, the government obtained 12,898 CSLI data points tracing Carpenter’s movements—an average of 101 location points per day for more than four months’ time. 6th Cir. Doc. No. 29, at 9.

At trial, FBI Special Agent Christopher Hess testified that Carpenter’s CSLI placed him near four of the charged robberies. Pet. App. 5a-6a. Hess produced maps, constructed using the CSLI, which showed the location of Carpenter’s phone relative to the locations of the robberies. Pet. App. 6a; id. at 85a-89a (Gov’t Trial Ex. 57). The government relied on the records to show Carpenter’s proximity to “the robberies around the time the robberies happened.” Pet. App. 6a. The prosecutor argued to the jury, for example, that Carpenter was “right where the first robbery was at the exact time of the robbery, the exact sector,” J.A. 131, and that he was “right in the right sector before the RadioShack [robbery] in Highland Park,” J.A. 132; see also J.A. 53-67 (testimony of Special Agent Hess).

4. A divided panel of the Sixth Circuit affirmed. The panel majority acknowledged that in United States v. Jones, 565 U.S. 400 (2012), five Justices agreed that people have a reasonable expectation of privacy in information very similar to the CSLI data obtained here—namely, “longer term GPS monitoring in government investigations of most offenses.” Pet. App. 13a (quoting Jones, 565 U.S. at 430 (Alito, J., concurring in the judgment)). But the majority held that individuals have no reasonable expectation of privacy in cell phone location records. Pet. App. 17a. It distinguished Jones on the ground that “[t]his case involves business records obtained from a third-party,” Pet. App. 14a, which the majority viewed as more like the landline calling records that this Court held in 1979 were not entitled to Fourth Amendment protection, Pet. App. 11a-12a (citing Smith v. Maryland, 442 U.S. 735 (1979)). The majority also noted that the GPS information in Jones was “accurate enough to show that the target [was] located within an individual building,” while CSLI was less precise. Pet. App. 14a-15a.

ARGUMENTI. The Acquisition of Longer-Term Cell Site Location Information

Constitutes a Search.A. Individuals Have a Reasonable Expectation of Privacy in Their

Longer-Term Cell Phone Location Records.a. For the same reason that five Justices concluded that there is a reasonable

expectation of privacy in longer-term GPS monitoring of a car, there is a 17

reasonable expectation of privacy in longer-term cell phone location records. Any other conclusion would allow the government to circumvent the principle accepted by five Justices in Jones through the simple expedient of obtaining cell phone location records. People use their cell phones throughout the day—when they are at home, work, or school, when they are in the car or on public transportation, when they are shopping or eating, and when they are visiting the doctor, a lawyer, a political associate, or a friend.3 People even keep their phones nearby and turned on while they are asleep.4 Indeed, “nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower.” Riley, 134 S. Ct. at 2490.

“[D]etails about the location of a cell phone can provide an intimate picture of one’s daily life.” State v. Earls, 70 A.3d 630, 642 (N.J. 2013). Historical CSLI “can reveal not just where people go—which doctors, religious services, and stores they visit—but also the people and groups they choose to affiliate with and when they actually do so.” Commonwealth v. Augustine, 4 N.E. 3d 846, 861 (Mass. 2014) (quoting Earls, 70 A.3d at 642). And to state the obvious, when people make a “visit to a gynecologist, a psychiatrist, a bookie, or a priest,” they typically “assume that the visit is private.” United States v. Davis, 754 F.3d 1205, 1216 (11th Cir. 2014) (Sentelle, J.), rev’d en banc, 785 F.3d 498 (11th Cir. 2015).

CSLI can also reveal that people are present in their own homes or the homes of their closest friends and relatives, even when that fact is otherwise undiscoverable. Such information gathering “falls within the ambit of the Fourth Amendment when it reveals information that could not have been obtained through visual surveillance” from a public place, such as whether “a particular article is actually located at a particular time in the private residence,” or to later confirm that the article remains on the premises. United States v. Karo, 468 U.S. 705, 707, 715 (1984).

b. Allowing law enforcement to obtain such records free and clear of any Fourth Amendment restriction would dramatically shrink the amount of privacy that people enjoyed from the time of the Framing through the dawn of the digital age. Prior to the widespread adoption of cell phones, the government simply could not have obtained a comprehensive record of a person’s past locations and movements over an extended period. Even “in the context of investigations involving extraordinary offenses,” Jones, 565 U.S. at 431 (Alito, J., concurring in the judgment), law enforcement agents could have retrieved at best only fragmentary historical location records: perhaps an employee’s timecard from the start of a shift, a few scattered store receipts, or a bit of commercial surveillance camera footage. But never could the government have successfully assembled a minute-

3 Hendrik Müller et al., Understanding and Comparing Smartphone and Tablet Use: Insights from a Large-Scale Diary Study, Proceedings of the 27th Australian Computer-Human Interaction Conference 427, 432 (2015), https://static.googleusercontent.com/media/research.google.com/en//pubs/archive/44200.pdf.4 Id.

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by-minute transcript of a person’s long-concluded movements over days, weeks, or months.

Indeed, prior to the digital age, the only way for the government conceivably to have obtained anything close to an “average of 134 data location points per day,” Graham, 824 F.3d at 447 (Wynn, J., dissenting in part)—or “one location data point every five and one half minutes,” Davis, 785 F.3d at 540 (Martin, J., dissenting)—would have been to ask the suspect to recall his past movements and divulge them to police. But that exercise would be severely limited by the vagaries of human memory and the Fifth Amendment’s privilege against self-incrimination, see Kastigar v. United States, 406 U.S. 441, 444-45 (1972).

Accordingly, the power to “reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building,” Riley, 134 S. Ct. at 2490 (citing Jones, 565 U.S. at 415 (Sotomayor, J., concurring)), gives police access to “a category of information that never would be available through the use of traditional law enforcement tools of investigation.” Augustine, 4 N.E.3d at 865; see also Jones, 565 U.S. at 415 (Sotomayor, J., concurring) (access to cell phone location information should trigger the Fourth Amendment because it offers a never-before-available “precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations”).

To be sure, the CSLI at issue here involves historical location data, rather than the real-time tracking that GPS devices provide. But this only strengthens the claim for Fourth Amendment protection. Absent constitutional oversight, the availability of CSLI records would make it “relatively easy and cheap,” Jones, 565 U.S. at 429 (Alito, J., concurring in the judgment), for the government to pervasively track virtually any American. With uninhibited access to cell phone location data, police would not need to surreptitiously attach a GPS tracker to a target’s car, nor return periodically to covertly change the tracker’s batteries. See, e.g., United States v. Sparks, 711 F.3d 58, 60 (1st Cir. 2013). The risk of the suspect discovering the surveillance would be zero, and a law enforcement agency would be limited neither by the number of agents in its employ nor the number of tracking devices it could afford. For only a nominal fee to the suspect’s service provider—or no fee at all—law enforcement could obtain a detailed journal of a person’s locations and movements over a very long period.5 The available data is limited only by the retention policies of service providers, which are typically long: five years for AT&T, 18 months for Sprint, one year for Verizon.6 5 Letter from William B. Petersen, Gen. Counsel, Verizon Wireless, to Sen. Edward J. Markey 5 (Oct. 3, 2013), https://www.markey.senate.gov/imo/media/doc/2013-12-09_VZ_CarrierResponse.pdf (“In the majority of instances . . . Verizon Wireless does not seek reimbursement for responding to law enforcement requests.”); Letter from Charles McKee, Vice President, Sprint Nextel, to Sen. Edward J. Markey 5 (Oct. 3, 2013), http://s3.documentcloud.org/documents/889100/response-sprint.pdf (“Sprint Letter”) (charging $30 per hour worked responding to requests for CSLI).6 Letter from Timothy P. McKone, Executive Vice President, AT&T, to Sen. Edward J. Markey 3 (Oct. 3, 2013), http://www.markey.senate.gov/imo/media/doc/2013-10-03_ATT_re_Carrier.pdf; Sprint Letter, supra, at 2; Silliman, supra.

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The ready availability of CSLI makes real the Court’s concern in United States v. Knotts about “dragnet type law enforcement practices” that make possible “twenty-four hour surveillance of any citizen of this country.” 460 U.S. 276, 283-84 (1983) (citation omitted).

3. Contrary to the Sixth Circuit’s reasoning, Pet. App. 14a-15a, acquisition of CSLI intrudes on reasonable expectations of privacy even if CSLI data is sometimes less precise than GPS data. Any attempt to differentiate between CSLI and GPS information is unsupportable in fact, not administrable in practice, and likely to become obsolete as technology advances.

a. While the CSLI in this case, which reflects the state of the technology in 2010 and 2011, did not generally yield GPS-level precision, it was nonetheless highly revealing. Petitioner’s cellular service provider recorded and retained information about the location of petitioner’s phone at the start and end of both outgoing and incoming calls. Pet. App. 4a. Each location point in the records identified the wedge-shaped cell site sector in which the phone was located at a particular time. The size of those sectors varied widely. In a sparsely populated rural area, a cell site’s coverage area might have extended for miles. Pet. App. 5a. In a dense urban or suburban area, cell sites were (and continue to be) located much closer together—down to a few hundred meters apart or, in the case of small cells, significantly less. Hoy, supra, at 69-70, 244.

Accordingly, the prosecution used petitioner’s CSLI to demonstrate that he was “right where the first robbery was at the exact time of the robbery, the exact sector,” J.A. 131, and that he was “right in the right sector before the Radio Shack in Highland Park,” J.A. 132. The prosecution also argued that petitioner’s phone was in a location on December 13, 2010, “consistent with the geographic area that encompasses the robbery scene,” J.A. 58, and that his location data provided “corroboration” to other evidence in the case, J.A. 131.

b. Even comparatively less precise location information can enable law enforcement to infer the exact location of a phone inside a home or other building. For example, “the Government has asserted in other cases that a jury should rely on the accuracy of the cell tower records to infer that an individual, or at least her cell phone, was at home.” In re Application of the U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to the Gov’t (Third Circuit CSLI Opinion), 620 F.3d 304, 311-12 (3d Cir. 2010); accord Davis, 785 F.3d at 540-41 (Martin, J., dissenting) (same). The government has used CSLI to place defendants “literally right up against the America Gas Station immediately preceding and after [the] robbery occurred,” Davis, 785 F.3d at 541 (Martin, J., dissenting) (alteration in original) (quoting trial transcript), “literally . . . right next door to the Walgreen’s just before and just after that store was robbed,” id. (alteration in original), and “right close to the McDonalds” before the robbery of that business, Trial Tr. of Apr. 27, 2012 at 96, United States v. Graham, 846 F. Supp. 2d 384 (D. Md. 2012) (No. RDB-11-0094), aff’d 824 F.3d 421 (4th Cir. 2016), petition for cert. filed, No. 16-6308.

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CSLI reveals not just where a person was at discrete moments, but where she was going. In this case, the government presented testimony explaining that cell site data points revealed petitioner’s trajectories placing him at certain businesses at the relevant times. See J.A. 59, 61-62, 66-67; see also United States v. Stimler, __ F.3d __, 2017 WL 3080866, at *16 (3d Cir. July 7, 2017) (Restrepo, J., concurring in part) (“The [government] expert also used CSLI to describe an individual’s ‘southbound movement on I-278.’”). And CSLI even allows the government to learn with whom a person associated and when, by matching the location information of two or more individuals. See, e.g., Pet. App. 81a-82a (concluding that petitioner and his co-defendant were at the same location based on their CSLI records); J.A. 133 (same).

Finally, cell site location information can “identify various patterns of life”7 and “identify important places in people’s lives” such as their home and work.8 When paired with other information about phone calls and text messages stored by service providers, it can even facilitate prediction of a cell phone user’s personality traits.9

c. Regardless of the precise granularity of the technology used in this case, “the rule [the Court] adopt[s] must take account of more sophisticated systems that are already in use or in development.” Kyllo, 533 U.S. at 36. And today, “the proliferation of . . . cell towers has resulted in smaller coverage areas and CSLI that is far more accurate—in some cases as good as GPS.” Stimler, 2017 WL 3080866, at *17 (Restrepo, J., concurring in part) (internal quotation marks and citation omitted). As one expert in cellular infrastructure has explained, “the precision of [CSLI] data will vary widely for any given customer over the course of a given day, from the relatively less precise to the relatively very precise . . . . For a typical user, over time, some of that data will inevitably reveal locational precision approaching that of GPS.”10

Cellular service providers can now calculate the “approximate distance the [cell phone] is from the cell site,” instead of just logging which sector it is in. Silliman, supra. In addition, providers are increasing their network coverage by deploying low-power “small cells,” sometimes called “microcells,” “picocells,” and 7 Neal Walfield et al., A Quantitative Analysis of Cell Tower Trace Data for Understanding Human Mobility and Mobile Networks, 6th International Workshop on Mobile Entity Localization, Tracking and Analysis 8 (Oct. 10, 2016), https://hal.inria.fr/hal-01378622/document.8 Sibren Isaacman et al., Identifying Important Places in People’s Lives from Cellular Network Data, Proc. of 9th International Conference on Pervasive Computing 2 (June 2011), http://kiskeya.org/ramon/work/pubs/pervasive11.pdf.9 Rodrigo de Oliveira et al., Towards a Psychographic User Model from Mobile Phone Usage, Proceedings of the ACM CHI 2011 Conference on Human Factors in Computing Systems 2195 (2011), http://www.ic.unicamp.br/~oliveira/doc/CHI2011-WIP_Towards-a-psychographic-user-model-from-mobile-phone-usage.pdf.10 The Electronic Communications Privacy Act (ECPA), Part 2: Geolocation Privacy and Surveillance: Hearing Before the Subcomm. on Crime, Terrorism & Homeland Sec. of the H. Comm. on the Judiciary, 113th Cong. 15 (2013) (statement of Matt Blaze, Associate Professor, University of Pennsylvania), https://judiciary.house.gov/wp-content/uploads/2016/02/Blaze-Testimony.pdf.

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“femtocells,” which provide service to much smaller areas than traditional cell sites. Hoy, supra, at 69-70; Graham, 824 F.3d at 448 (Wynn, J., dissenting). The number of small cells in the United States now exceeds the number of traditional cell sites.11 Callers connecting to a carrier’s small cells can be located to a high degree of precision, “such as one floor of a building, the waiting room of an office, or a single home.” Graham, 824 F.3d at 448 (Wynn, J., dissenting).12

CSLI is also becoming more voluminous. Cellular service providers now collect and retain location information not just for the start and end of calls, but for text messages and data connections, “such as checking email, watching a video, or using apps.” Silliman, supra; see also Hoy, supra, at 255. During internet-based data connections, service providers “collect[] multiple location points.” Silliman, supra. Americans “spend two hours and 32 minutes a day[,] on average, using apps or accessing the web on their smartphones—a figure that has doubled in the past year alone.” CTIA, Wireless Snapshot 2017, at 4 (2017).13 Even when people are not actively using their phones, many email and social media apps regularly contact the network to check for new messages, thus generating a steady stream of location data that would easily eclipse the 101 location points per day represented in petitioner’s records. See 6th Cir. Doc. No. 29, at 9. This trend toward greater precision and more comprehensive tracking is sure to continue.

Thus, a rule that protects GPS data but not CSLI is doomed to obsolescence and would render the protection established in Jones a dead letter. The GPS data at issue in Jones itself lacked pinpoint precision, establishing the vehicle’s location within only 50 to 100 feet. Jones, 565 U.S. at 403. Some CSLI data points already approach this level of precision, and the precision of CSLI will only increase. Indeed, service providers are already able to precisely locate phones in real time by triangulating their location based on signals received from multiple nearby towers. See In re Application of the U.S. for an Order Authorizing Disclosure of Location Info. of a Specified Wireless Tel., 849 F. Supp. 2d 526, 532-34 (D. Md. 2011).14

11 Compare Michael Carroll, Small Cells Hit Milestone, FierceWireless, Nov. 1, 2012, http://www.fiercewireless.com/europe/small-cells-hit-milestone (noting Sprint’s deployment of one million femtocells in the United States as of 2012), with CTIA, Annual Wireless Industry Survey (2017), supra, at 5 (301,779 traditional cell sites erected by all U.S. cellular carriers as of 2012).12 Wireless providers are able to identify the location of small cells in order to comply with emergency calling location requirements (E-911). See Fourth Report & Order 18 & n.94, In re Wireless E911 Location Accuracy Requirements, PS Docket No. 07-114 (F.C.C. Jan. 29, 2015), https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-9A1.pdf.13 https://www.ctia.org/docs/default-source/default-document-library/ctia-wireless-snapshot.pdf.14 When the government requests historical CSLI it has no way to know in advance how many data points will be for small cells or geographically small sectors, or will otherwise reveal especially precise location information. Nor will it know how frequently a suspect uses his phone, and thus what volume of location data is available. As this Court observed in Kyllo, “[n]o police officer would be able to know in advance whether his through-the-wall surveillance picks up ‘intimate’ details—and thus would be unable to know in advance whether it is constitutional.” 533 U.S. at 39. Only clear guidance from this Court will provide adequate constitutional protection.

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C. Pre-Digital Cases Concerning the Third-Party Doctrine Do Not Govern this Case.

1. Cell Site Location Information Is Far More Sensitive Than the Phone and Bank Records Involved in Smith and Miller, and Unlike Those Records, Is Not Voluntarily Conveyed.

The Sixth Circuit believed that two cases from the pre-digital age—Smith v. Maryland, 442 U.S. 735 (1979), and United States v. Miller, 425 U.S. 435 (1976)—constituted “binding precedent” precluding application of the Fourth Amendment to the records at issue. Pet. App. 12a-14a; see also BIO 14. They do not. There is no basis in this Court’s jurisprudence for extending Smith and Miller to CSLI, both because the information is more sensitive, and because it is not voluntarily shared with a third party in any meaningful way.

In Smith, this Court ruled that the use of a pen register for several days to capture the telephone numbers a person dials does not implicate a reasonable expectation of privacy. 442 U.S. at 740-42. The Court assessed the degree of invasiveness of the surveillance to determine whether the caller had a reasonable expectation of privacy, noting the “pen register’s limited capabilities” and explaining that “a law enforcement official could not even determine from the use of a pen register whether a communication existed.” Id. at 741-42 (citation omitted). The Court emphasized that when dialing a phone number, the caller “voluntarily convey[s] numerical information to the telephone company.” Id. at 744. People must know this, the Court explained, because they have to “convey” phone numbers to the phone company in the process of dialing them, and because “they see a list of their long-distance (toll) calls on their monthly bills.” Id. at 742.

Similarly, in Miller the Court concluded that a bank customer lacked any Fourth Amendment interest in several months’ worth of canceled checks, deposit slips, and account statements held by a bank. 425 U.S. at 438, 440. The Court explained that “[w]e must examine the nature of the particular documents sought to be protected in order to determine whether there is a legitimate ‘expectation of privacy’ concerning their contents.” Id. at 442. The Court concluded that there was a low privacy interest in the records, because “[t]he checks are not confidential communications but negotiable instruments to be used in commercial transactions.” Id. As in Smith, the Court also noted that the government obtained “only information voluntarily conveyed to the banks.” Id.

This Court need not disturb the holdings of Smith and Miller to conclude that they do not apply in this context. The particular records at issue here are far more sensitive and personal than those in Smith and Miller, and are not conveyed in a meaningfully voluntary way. Indeed, the typical user is not even aware that the cellular service provider has this compendium of sensitive information.

a. The degree of sensitivity in the information here is alone sufficient to distinguish Smith and Miller. That is the teaching of the concurrences in Jones. Before that case, this Court had applied Smith to hold that “[a] person travelling in

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an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another” because he “voluntarily convey[s] to anyone who want[s] to look the fact that he was travelling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination.” Knotts, 460 U.S. at 281-82. But in Jones, five Justices concluded that longer-term surreptitious GPS monitoring of cars traveling on public streets violates reasonable expectations of privacy. Longer-term GPS information is so personally sensitive and so unlikely to have been obtained in the pre-digital era that it triggers a reasonable expectation of privacy, regardless of whether the locational information it contains was theoretically disclosed to the entire public at large.

Indeed, to assess individuals’ expectations of privacy in records or information held by a third party, this Court has never relied simply on the fact that they were shared, but has also looked to what privacy interest a person has in the information the records reveal. See, e.g., Ferguson v. City of Charleston, 532 U.S. 67, 78 (2001) (reasonable expectation of privacy in diagnostic test records held by hospital); Stoner v. California, 376 U.S. 483, 485, 489-90 (1964) (Fourth Amendment protects privacy in hotel room even though a guest “undoubtedly gives implied or express permission to such persons as maids, janitors or repairmen to enter his room in the performance of their duties” (internal quotation marks and citation omitted)). Far from being a formalistic rule, the “third party” doctrine is really just a shorthand for one factor in the overall reasonable-expectation-of-privacy analysis—a factor that can be overcome when highly sensitive information is at stake.

That is the case here. Just as in Jones and Riley, “any extension of [pre-digital] reasoning to digital data has to rest on its own bottom.” Riley, 134 S. Ct. at 2489. Here, the 186 pages of cell phone location records covering four months are orders of magnitude more granular and revealing than the records in Smith and Miller. Equating a comprehensive digital repository of cell phone location records with a few days of dialed telephone numbers or even several months’ worth of canceled checks “is like saying a ride on horseback is materially indistinguishable from a flight to the moon.” Riley, 134 S. Ct. at 2488. Both are records in the possession of a third party, “but little else justifies lumping them together.” Id.

b. Smith and Miller also do not control because there is no meaningfully voluntary conveyance of CSLI. The act of possessing a cell phone, and even more so the transmission of location information, is not voluntary in any meaningful way.

i. The government asserts that any person who “cho[o]se[s] to carry a cell phone” “takes the risk” that her service provider will reveal days, weeks, or months of her location information to the government. BIO 16. Under this theory, the “choice” that exposes a person’s location history to warrantless search is not the knowing placement of a call or sending of a text message, but any possession of a cell phone. Location information is generated not only for outgoing communications initiated by the phone user, but also for incoming calls (whether answered or not) and text messages, and for countless data connections made

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without any active participation of the user, such as when a phone sitting in a person’s pocket or purse checks every few seconds or minutes for new emails or social media updates.

The mere act of possessing a cell phone does not voluntarily disclose a comprehensive record of one’s movements in any meaningful sense. Modern cell phones are “a pervasive and insistent part of daily life.” Riley, 134 S. Ct. at 2484. Virtually every American adult has a cell phone, and people feel compelled to carry their cell phones with them nearly everywhere they go, serving as “necessary instruments for self-expression, even self-identification.” City of Ontario v. Quon, 560 U.S. 746, 760 (2010). Many employers also demand that people remain digitally “in touch” at all times—or at least when away from the office during normal business hours.

Alternative means of enabling this type of communication are fast disappearing—or never existed in the first place. A majority of American homes now do not have a landline telephone, as residents rely exclusively on cell phones.15 The number of pay phones in the United States has plummeted from more than two million in 1997, to less than 100,000 today.16 And no other device—past or present—allows people to text, email, check social media, and follow daily political announcements while away from home or the office. In short, smartphones are “not just another technological convenience”; they have become indispensable for full participation in family, social, professional, civic, and political life. Riley, 134 S. Ct. at 2494.

Furthermore, cell phones are now vital instruments of personal safety. For many, they are the exclusive means to call first responders, physicians, or family members in a medical emergency or to report a crime; to seek roadside assistance or summon police after a car accident, flat tire, or vehicle breakdown; to get directions when lost; and to check on the whereabouts of a child. “[A]bout 70 percent of 911 calls are placed from wireless phones, and that percentage is growing. For many Americans, the ability to call 911 for help in an emergency is one of the main reasons they own a wireless phone.” F.C.C., 911 Wireless Services.17 Ready access to a functioning cell phone provides a level of security that most Americans cannot realistically give up.

Finally, smartphones are fast gaining capacity to be used as critical medical instruments. New software allows them to monitor bodily functions and transmit

15 Stephen J. Blumberg & Julian V. Luke, Ctrs. for Disease Control & Prevention, Nat’l Ctr. for Health Statistics, Wireless Substitution: Early Release of Estimates from the National Health Interview Survey, July–December 2016 1 (2017), https://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless201705.pdf.16 F.C.C., Indus. Analysis & Tech. Div., Payphone Data from 1997 Through 2016 tbl.1 (2017), https://www.fcc.gov/file/12198/download.17 https://www.fcc.gov/consumers/guides/911-wireless-services. See also Pew Research Ctr., U.S. Smartphone Use in 2015 25 (2015), http://www.pewinternet.org/2015/04/01/us-smartphone-use-in-2015 (“Fully 53% of smartphone owners indicate that they have been in an emergency situation where having their phone available helped resolve the situation.”).

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data to doctors in real time. Eric J. Topol, The Future of Medicine Is in Your Smartphone, Wall St. J., Jan. 9, 2015.18 If a person’s doctor instructs her to carry a smartphone to monitor her heart rate or the amount of a certain chemical in her bloodstream, following that instruction can hardly be considered a “voluntary” act that assumes the risk that the government might track the person’s every movement. The same is true of an equivalent request from one’s employer that one remain in touch and available while away from the office. People should not be forced to choose between their privacy and their safety, health, or livelihood.

This is especially so because each of a smartphone’s essential functions—calling, texting, emailing, data access, navigation, medical monitoring, and so on—is impossible to use without leaving a trail of location records held by the service provider. There is no way to avoid the aggregation and retention of this location information short of turning off or disabling the phone.

Most smartphones have a location privacy setting that, when enabled, prevents applications (“apps”)—such as a GPS navigation app—from accessing the phone’s location. See, e.g., Apple, iPhone User Guide: Location Services.19 Users might well believe that enabling this function protects their locational privacy. But this setting has no impact at all upon cellular service providers’ ability to log and retain the phone’s location. Maxwell Payne, How to Turn Off GPS on a Cell Phone, USA Today.20 Virtually any use of the phone generates a location record. There is no option to close the proverbial phone booth door. See Katz, 389 U.S. at 352.

ii. Even if the possession of cell phones could be said to be voluntary, the conveyance of location information of the type obtained by the government here surely cannot. Though some people may have a general sense that their cell phones must communicate with the service provider’s cell towers in order to place and receive calls, they cannot know whether the service provider is logging and retaining that data and in what form or detail: single-tower data or triangulated position; sector information or estimated distance from the nearest cell site. People do not know which cell tower and sector their phone is connected to at any time, how large the coverage area of that tower is, or how long the carrier retains location records. Nor will they know whether their phone was roaming on another carrier’s network, as was petitioner’s here, Pet. App. 72a, and thus whether a company with which they have no contractual relationship whatsoever is logging and retaining their location. In re Application for Tel. Info. Needed for a Criminal Investigation, 119 F. Supp. 3d 1011, 1028-29 (N.D. Cal. 2015).

It is also telling that, unlike in Smith and Miller, individuals do not receive their CSLI in their monthly bill. Compare Smith, 442 U.S. at 742, with Graham, 824 F.3d at 445 (Wynn, J., dissenting in part). Even a customer who wanted to learn this information could not do so: service providers refuse to disclose location records to customers who request them. Megha Rajagopalan, Cellphone

18 https://www.wsj.com/articles/the-future-of-medicine-is-in-your-smartphone-1420828632.19 https://help.apple.com/iphone/10/#/iph3dd5f9be.20 http://traveltips.usatoday.com/turn-off-gps-cell-phone-21147.html.

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Companies Will Share Your Location Data – Just Not With You, ProPublica, June 26, 2012.21

Put another way, people do not knowingly or intentionally convey to their service provider a “virtual current biography,” People v. Blair, 602 P.2d 738, 745 (Cal. 1979), charting their locations and movements over weeks and months. While people may know in some general sense that they have to be near a cell tower in order to make or receive a call, it would be outlandish to extrapolate from that minimum knowledge the conclusion that people knowingly and voluntarily disclose their every movement to the government. There is a huge difference between the knowing act of using a cell phone to make a discrete communication, and the involuntary and generally unknown process by which thousands of individual location points are aggregated into a digital almanac of a cell phone user’s life.

2. Extending Smith and Miller to CSLI Records Would Remove a Great Volume of Other Similarly Sensitive Digital Records from the Protection of the Fourth Amendment.

Although it may someday be necessary to “reconsider the premise” of the third-party doctrine, Jones, 565 U.S. at 417 (Sotomayor, J., concurring), it is not necessary in this case to reassess its continued validity in every possible context. Properly understood, the disclosure of information to a third party is but one factor in determining whether a reasonable expectation of privacy exists. See supra Part I.C; see also State v. Walton, 324 P.3d 876, 901 (Haw. 2014). And this Court has explained that “[i]t would be foolish” to suggest that such Fourth Amendment analyses should not account for “the advance of technology.” Kyllo, 533 U.S. at 33-34. These principles are sufficient to resolve this case.

At the same time, were the Court to hold that the mere act of disclosing information to a third-party business is enough to defeat any Fourth Amendment protection, it would not only effect “a significant diminution of privacy,” Riley, 134 S. Ct. at 2493, but would also throw into question whether a vast array of Americans’ most highly sensitive records can be be protected in the 21st century against dragnet access at law enforcement’s whim. Indeed, under the government’s theory, people would have no reasonable expectation of privacy even in their emails, because the contents of those communications are shared with a third party.

“In our time, unless a person is willing to live ‘off the grid,’ it is nearly impossible to avoid disclosing the most personal of information to third-party service providers on a constant basis, just to navigate daily life.” Davis, 785 F.3d at 525 (Rosenbaum, J., concurring). People cannot avoid disclosing “the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers[, ]the books, groceries, and medications they purchase to online retailers,” Jones, 565 U.S. at 417 (Sotomayor, J., concurring), the contents of their emails, text messages, and private social media communications to their 21 https://www.propublica.org/article/cellphone-companies-will-share-your-location-data-just-not-with-you.

27

electronic communication service providers, their search queries to Google, their GPS coordinates and location history to Apple, Google, and Waze, their intimate photos to Apple or Flickr, and their medical queries to WebMD. See Davis, 785 F.3d at 536 (Martin, J., dissenting).

Moreover, with the rapid proliferation of the so-called “internet of things,” virtually any appliance or effect can now be connected to the internet and programmed to transmit information about a person’s home, body, or movements to a third-party company’s cloud-based server. Andrew Guthrie Ferguson, The Internet of Things and the Fourth Amendment of Effects, 104 Cal. L. Rev. 805 (2016). Even detailed information about “exercise, moods, sleep patterns, and food intake,” id. at 818, reproductive health,22 and sexual activity23 is now recorded and retained on servers controlled by a third party. Not even utterances within the walls of a home are exempt.24

Under the government’s theory, this vast array of information would automatically lose Fourth Amendment protection. The Sixth Circuit tried to erect a barricade against such slippage, holding that persons have a reasonable expectation of privacy in the “contents” of communications, such as emails. United States v. Warshak, 631 F.3d 266, 285-88 (6th Cir. 2010). But if the Sixth Circuit and the government are correct that Smith and Miller “resolve this case” because “‘a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties,’” BIO 14-15 (quoting Smith, 442 U.S. at 743-44), there is no way to distinguish emails—or any other of the data just described—from CSLI.25

Surely a world in which people could not treat their email communications as private would be a radical departure from the privacy people have long expected with respect to their letters, phone calls, and now electronic communications.

22 See Moira Weigel, ‘Fitbit for Your Period’: The Rise of Fertility Tracking, Guardian, Mar. 23, 2016, https://www.theguardian.com/technology/2016/mar/23/fitbit-for-your-period-the-rise-of-fertility-tracking.23 See Kashmir Hill, This Sex Toy Tells the Manufacturer Every Time You Use It, Fusion, Aug. 9, 2016, available at https://web.archive.org/web/20170507193448/https://fusion.kinja.com/this-sex-toy-tells-the-manufacturer-every-time-you-use-1793861000.24 See Tim Moynihan, Alexa and Google Home Record What You Say. But What Happens to that Data?, Wired, Dec. 5, 2016, https://www.wired.com/2016/12/alexa-and-google-record-your-voice.25 The government has also analogized CSLI to the records in Smith and Miller on the ground that CSLI data are “business records” that service providers “create for their own purposes.” BIO 14. But as explained infra at Part II.B, CSLI does not constitute a “business record” in any traditional sense. In any event, this Court should eschew any rule that would hinge Fourth Amendment protection on whether information constitutes a “business record.” That term has no established meaning, and is untethered from the relevant Fourth Amendment inquiry: whether there is a reasonable expectation of privacy or a property interest in the records at issue.

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2017 WL 4311113 (U.S.) (Appellate Brief)Supreme Court of the United States.

Timothy Ivory CARPENTER, Petitioner,v.

UNITED STATES OF AMERICA.No. 16-402.

September 25, 2017.Brief for the United States

STATEMENT

A. Cell-Site Records And The Stored Communications Act

1. Cellular telephones “work by establishing a radio connection with nearby cell towers (or ‘cell sites’).” Pet. App. 5a; see id. at 76a-77a. “[A] cell tower is a large antenna that emits a radio frequency” to cell phones within the tower’s coverage area. J.A. 45. “[I]ndividual towers project different signals in each direction or ‘sector,’ ” typically with three sectors per tower. Pet. App. 5a, 78a; J.A. 45. If a provider does not have towers covering a particular area, the provider may enter into a “roaming” agreement to use another provider’s towers. J.A. 44; see J.A. 49-50, 63-64. In rural areas, “a tower’s coverage might reach as far as 20 miles.” Pet. App. 5a. “In an urban area like Detroit,” where most of the robberies at issue occurred, “each cell site covers typically anywhere from a half-mile to two miles.” Ibid. (internal quotation marks omitted). When an individual places or receives a call on a cell phone, the phone scans its environment and connects to the cell site with the best signal, which will typically be the tower closest to the phone or in its direct line of sight. Pet. App. 76a-77a. Factors other than distance *3 may influence signal strength, including “buildings, topography,” and “[t]he time of year.” J.A. 48. During the call, the phone and tower transmit signals to each other to maintain the connection, and the phone may switch to a new tower if the signal strength fluctuates or the phone moves. J.A. 43-44, 83; Pet. App. 77a. Cell-service providers “typically log and store certain call-detail records of their customers’ calls, including the date, time, and length of each call; the phone numbers engaged on the call; and the cell sites where the call began and ended.” Pet. App. 5a-6a. No law requires providers to create or maintain cell-site records; instead, providers retain those records in the ordinary course of business for their own purposes. Id. at 7a, 10a. Those purposes include finding weak spots in the providers’ networks and applying roaming charges. Ibid. In addition, providers may sell aggregated cell-site data they collect or otherwise use that data in business ventures unrelated to providing cell-phone service. See, e.g., Electronic Privacy

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Information Center (EPIC) Amicus Br. 22-23 (describing how cell-service providers sell location data to data brokers); Tech. Experts Amicus Br. 23 (stating that providers have “found commercial uses for location data”). Providers in the United States disclose their collection and use of cell-site data in their privacy policies.1

*5 B. The Present Controversy

1. Beginning in December 2010, petitioner and his co-conspirators committed a string of armed robberies at Radio Shack and T-Mobile stores in Ohio and Michigan. Pet. App. 3a, 6a. Petitioner typically organized the robberies, supplied the guns, and acted as a lookout. Id. at 5a. On petitioner’s signal, a group of robbers “entered the store, brandished their guns, herded customers and employees to the back, and ordered the employees to fill the robbers’ bags with new smartphones.” Ibid. After each robbery, the team met nearby to dispose of the guns and getaway vehicle and sell the stolen merchandise. Ibid. 2. a. In April 2011, police arrested four of petitioner’s co-conspirators, and one of them “confessed that the group had robbed nine different stores in Michigan and Ohio between December 2010 and March 2011, supported by a shifting ensemble of 15 other men who served as getaway drivers and lookouts.” Pet. App. 3a. Based on that information, the government applied to federal magistrate judges for court orders pursuant to Section 2703(d) of the SCA. Id. at 3a-4a; see id. at 49a-55a, 62a-68a. As relevant here, those applications sought orders directing MetroPCS and Sprint to disclose non-content records for a cell-phone number that petitioner used, including “cell site information for [petitioner’s] telephone[] at call origination and at call termination for incoming and outgoing calls.” Id. at 4a. Specifically, the government requested 152 days of historical cell-site records from MetroPCS, spanning the period when the string of robberies occurred in Detroit between December 2010 and April 2011. Id. at 52a, 61a. The government sought seven days of records from Sprint, linked to the date of a robbery in Warren, Ohio, *6 where MetroPCS has a roaming agreement with Sprint. Id. at 65a, 80a. The magistrate judges issued the requested orders. Pet. App. 4a; see id. at 56a-61a, 69a-73a. MetroPCS then produced 127 days of cell-site records and Sprint produced two days of records for petitioner’s phone number. Id. at 7a; Pet. Br. 7. The records showed the towers petitioner’s phone connected to when it made and received calls, but did not contain any cell-site information for text messages or for times when petitioner’s phone was turned on but was not being used to connect a call. See Pet. App. 7a. From the cell-site records, as well as MetroPCS and Sprint records identifying the locations of their towers, the government could infer the approximate location of petitioner’s phone when calls were connected to it around the time of the robberies. Pet. App. 6a; J.A. 78-79. Because the cell sites covered areas “extending between one-half mile and two miles in length,” however, the government could

30

determine the location of petitioner’s phone only “within a 3.5 million square-foot to 100 million square-foot area” - “as much as 12,500 times less accurate than *** GPS data.” Pet. App. 14a-15a. The government ultimately determined that petitioner’s phone connected to cell towers in the general vicinity of the sites of four robberies around the times those robberies occurred. Id. at 6a. c. The case proceeded to trial, where seven accomplices testified about petitioner’s involvement in the robberies. Pet. App. 5a. The government also introduced videotapes and eyewitness testimony placing petitioner near the relevant robbery scenes. See Gov’t C.A. Br. 45-47 (describing evidence). In addition, FBI Special Agent Christopher Hess offered expert testimony about the cell-site data for petitioner’s phone. Pet. App. 5a-6a; J.A. 36-129. Agent Hess explained that petitioner’s providers recorded tower information only when the phone was “active,” meaning “[e]ngaging in a call.” J.A. 60; see J.A. 61 (testimony that “if you dial a number and you hit send, that tower information is populated in the call detail record,” but records are not created when “the phone is just in [a] pocket” and not making or receiving calls). “The parties stipulate[d] and agree[d] that the telephone call detail records from *** Metro PCS and Sprint” were “authentic and accurate business records of these companies.” J.A. 51; see J.A. 136 (cell-site record for petitioner’s phone on December 13, 2010).2

*8 Based on those records, Agent Hess identified eight calls that occurred around the time of four robberies. Pet. App. 80a-82a; J.A. 56-67, 77-79. He presented maps of the towers that connected those calls to demonstrate that petitioner’s phone was within a half-mile to two miles of the crime scenes. Pet. App. 6a, 86a-89a. But Agent Hess could not offer “any opinion about exactly where a phone was at any particular time” within each tower’s coverage area. J.A. 88. He acknowledged that he could not determine from the cell-site records whether petitioner’s phone was at a specific parking lot or intersection, J.A. 86-87; whether the phone was north or south of a store, J.A. 95; whether the phone had connected to a particular tower based on proximity or other “variables, such as *** the battery strength,” J.A. 84; “who was actually using the phone at the time that the call was made,” J.A. 88; or why the phone was located within a particular tower’s coverage area at a particular time, J.A. 95-96. Agent Hess acknowledged that his analysis of cell-site records was “not an exact science.” J.A. 97-98.

ARGUMENT

I. THE GOVERNMENT’S ACQUISITION OF PROVIDERS’ BUSINESS RECORDS OF THE TOWERS USED TO CONNECT PETITIONER’S CALLS DID NOT

CONSTITUTE A FOURTH AMENDMENT SEARCH OF PETITIONER

A. A Cell-Phone User Has No Reasonable Expectation Of Privacy In Business Records Created By His Provider Documenting The Cell Sites

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Used To Connect His Calls

1. Petitioner cannot claim a legitimate privacy interest in information about his proximity to cell towers that he disclosed to his cell-service

providers

a. “This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith v. Maryland, 442 U.S. 735, 743-744 (1979). Third-party service providers who receive such information are free to create business records pertaining to the service they provide to their customers. Id. at 745. And the Court has held that the government’s subsequent acquisition of those records does not constitute a Fourth Amendment search of the customer. See id. at 744-745; United States v. Miller, 425 U.S. 435, 442-443 (1976). In Miller, the government subpoenaed a defendant’s banks for several months of records of his accounts, including copies of his checks, deposit slips, financial statements, and monthly statements. 425 U.S. at 436-438. The defendant contended that he had “a reasonable expectation of privacy” in those records because “they [were] merely copies of personal records that were made available to the banks for a limited purpose.” Id. at 442. But the Court rejected that argument, observing that it had “held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him *16 to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose.” Id. at 443. The Court explained that the defendant could “assert neither ownership nor possession” of the records; rather, they were “business records of the banks.” Id. at 440. Because those records “contain [ed] only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business,” the Court concluded that the defendant had “take[n] the risk, in revealing his affairs to another, that the information w[ould] be conveyed by that person to the Government.” Id. at 442, 443. In Smith, the Court applied the same principles to information conveyed to a telephone company. There, the police requested that the defendant’s telephone company install a pen register at its offices to record the numbers dialed from the defendant’s home phone. 442 U.S. at 737. The Court rejected the defendant’s argument that the government’s acquisition of the records of his dialed numbers qualified as a Fourth Amendment search. Id. at 742-746. Smith first expressed “doubt that people in general entertain any actual expectation of privacy in the numbers they dial,” given that “[a]ll telephone users realize that they must ‘convey’ phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed.” 442 U.S. at 742. The Court believed that the typical user would be aware that the phone company could choose to record the numbers he dialed and

32

would “in fact record this information for a variety of legitimate business purposes.” Id. at 743. “Most phone books,” the Court observed, inform users “that the [phone] company can frequently help in identifying to the authorities the origin *17 of unwelcome and troublesome calls.” Id. at 742-743 (internal quotation marks omitted). Smith went on to explain that “even if [the defendant] did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not one that society is prepared to recognize as reasonable.” 442 U.S. at 743 (citation and internal quotation marks omitted). “When [the defendant] used his phone,” the Court observed, he “voluntarily conveyed numerical information to the telephone company and exposed that information to its equipment in the ordinary course of business.” Id. at 744 (internal quotation marks omitted). Because the company was “free to record” the information the defendant conveyed about the numbers he was dialing, the Court concluded that he “assumed the risk” that the company’s records “would be divulged to police.” Id. at 745. b. The Court’s third-party cases establish that petitioner has no Fourth Amendment interest in MetroPCS’s and Sprint’s records of the cell towers they used to connect his calls. i. Petitioner lacks any subjective expectation of privacy in the cell-site information because his providers compiled that data based on their transactions with petitioner for their own business purposes. See Pet. App. 7a, 10a. As with the bank records in Miller, petitioner “can assert neither ownership nor possession” of the cell-site records, 425 U.S. at 440; indeed, he “stipulate[d] and agree[d]” that they were “business records of [MetroPCS and Sprint].” J.A. 51. “Although subjective expectations cannot be scientifically gauged,” cell-phone users, like landline users, should not be presumed *19 to have a “general expectation” that data generated by their use of telephone-company equipment and incorporated into the company’s records “will remain secret.” Smith, 442 U.S. at 743 .

Petitioner contends (Br. 42-44) that cell-phone users may not realize the extent of the information they disclose about their location when they use their providers’ towers to connect their calls. But as petitioner recognizes (Br. 42-43), cell-phone users surely “have a general sense that their cell phones must communicate with the service provider’s cell towers in order to place and receive calls.” “[A]ny cellphone user who has seen her phone’s signal strength fluctuate must know that, when she places or receives a call, her phone ‘exposes’ its location to the nearest cell tower and thus to the company that operates the tower.” Pet. App. 12a; see, e.g., United States v. Graham, 824 F.3d 421, 430 (4th Cir. 2016) (en banc), petitions for cert. pending, Nos. 16-6308 and 16-6694 (filed Sept. 26 and Oct. 27, 2016); United States v. Davis, 785 F.3d 498, 511 (11th Cir.) (en banc), cert. denied, 136 S. Ct. 479 (2015); In re Application of the U.S. for Historical Cell Site Data, 724 F.3d 600, 613 (5th Cir. 2013) (Fifth Circuit In re Application); see also Smith, 442

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http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1979135155&pubNum=0000780&originatingDoc=I60406712a47d11e7b73588f1a9cfce05&refType=RP&fi=co_pp_sp_780_743&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_780_743

http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1976142361&pubNum=0000780&originatingDoc=I60406712a47d11e7b73588f1a9cfce05&refType=RP&fi=co_pp_sp_780_440&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_780_440

U.S. at 743 (relying on what telephone users “typically know” to refute any subjective expectation of privacy). If any doubt existed on that point, “contractual terms of service and providers’ privacy policies expressly state that a provider uses a subscriber’s location information to route his cell phone calls.” Fifth Circuit In re Application, 724 F.3d at 613; see p. 3 n.1, supra (citing policies); see also Smith, 442 U.S. at 742-743 (finding no subjective privacy expectation in dialed numbers in part because “[m]ost phone *20 books t[old] subscribers” that the phone company could help identify the source of unwelcome calls).4

Petitioner further errs in asserting (Br. 43) that cell-phone users may subjectively expect that routing information for their calls will remain private because they “do not receive their [cell-site location information] in their monthly bill” and “cannot know whether the service provider is logging and retaining that data and in what form or detail.” The Smith Court rejected similar arguments. There, the Court acknowledged that “most people may be oblivious to a pen register’s esoteric functions,” 442 U.S. at 742, and that telephone users would not ordinarily see lists of the local numbers they dialed because “telephone companies, in view of their present billing practices, usually do not record local calls,” id. at 745. But the Court nevertheless found that users are generally aware that companies can track the numbers dialed and are “free to record” that information. Ibid. Cell-phone users similarly should be charged with knowledge “that they must transmit signals to cell towers within range, that the cell tower functions as the equipment that connects the calls, that users when making or receiving calls are necessarily conveying *21 or exposing to their service provider their general location within that cell tower’s range, and that cell phone companies make records of cell-tower usage” or are free to do so. Davis, 785 F.3d at 511. ii. In any event, any subjective expectation of privacy in information a user conveys to his provider about his proximity to cell towers would not be objectively reasonable because “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith, 442 U.S. at 743-744. Just as a person who dials a phone number “voluntarily convey[s] numerical information to the telephone company and expose[s] that information to its equipment in the ordinary course of business,” id. at 744 (internal quotation marks omitted), a cell-phone user reveals general information about his location to his provider so that it can connect his calls. A cell-phone user thus has no valid basis for complaint if the provider makes use of that business information, including by providing it to the government. See Miller, 425 U.S. at 443.

2. Petitioner cannot distinguish this Court’s cases finding no reasonable expectation of privacy in information conveyed to a third party

Petitioner argues (Br. 35-47) that the third-party doctrine should not apply to longer-term cell-site records, but his attempts to distinguish Smith and Miller lack merit.

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a. Petitioner asserts (Br. 36) that “[t]he particular records at issue here are far more sensitive and personal than those in Smith and Miller.” That contention is both factually inaccurate and legally irrelevant. *24 i. Petitioner stakes his asserted expectation of privacy on his claim (Br. 3) that the government’s acquisition of cell-site information “make[s] it possible to reconstruct in detail everywhere an individual has traveled over hours, days, weeks, or months.” That is incorrect. Although petitioner likens cell-site records to GPS tracking, cell-site location information is actually “as much as 12,500 times less accurate” than GPS data. Pet. App. 14a. Rather than pinpoint petitioner’s precise location, the records identified “a 3.5 million square-foot to 100 million square-foot area,” ibid. - an area that would cover about 180 to 5155 oval plazas equal in size to the one in front of the Supreme Court building. See Hodge v. Talkin, 799 F.3d 1145, 1151 (D.C. Cir. 2015) (providing measurements of the Court’s plaza), cert. denied, 136 S. Ct. 2009 (2016). When such an area encompasses a crime scene, cell-site records may be consistent with the government’s theory that a defendant was there, but they do not on their own suffice to place him at the crime scene. See Pet. App. 89a. The government must instead rely on reasonable inferences or additional evidence - e.g., eyewitness accounts and video surveillance like that introduced at petitioner’s trial - to develop proof of a defendant’s movements. The cell-site records in this case illustrate the point. On December 13, 2010, for example, petitioner’s phone connected to two cell towers close in time to the robbery of a Radio Shack in Detroit. Pet. App. 86a. During the first call, petitioner’s phone connected to a tower more than a dozen blocks southwest of the Radio Shack, and during the second call, petitioner’s phone initially connected to a tower at least eight blocks northeast of the store. Ibid. An excerpt of the map Agent Hess created shows that area:

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As reflected in the following illustration using data from Google Maps, the area approximately within the relevant tower sectors today contains about 1000 buildings, including hundreds of homes, various commercial establishments, more than one dozen houses of worship, several civic buildings, numerous multi-unit apartment buildings, and a large automobile assembly plant.6

36

37

*27 While the cell-site data corroborated other evidence of petitioner’s participation in the December 13 robbery, it could not reveal the exact whereabouts of his phone within the towers’ coverage area. J.A. 88, 131-132. From the records alone, the government could not determine whether petitioner (or someone using his phone) was at the Radio Shack, or instead at any one of the nearby bars, restaurants, stores, schools, banks, gas stations, other commercial establishments, or homes. Petitioner contends (Br. 27-29) that cell-site records will enable more precise inferences about an individual’s location in the future as providers deploy cell towers with smaller coverage areas. But petitioner identifies no case in which the government has obtained records involving small-cell technology. And the technology could develop in a different direction. For example, device-to-device technology could reduce the need for cell towers, preventing providers from collecting or recording location information. See, e.g., Tom Simonite, Future Smartphones Won’t Need Cell Towers to Connect, MIT Tech. Review, Sept. 29, 2014, https://www.technologyreview.com/s/530996/future-smartphones-wont-need-cell-towers-to-connect/ (describing technology); Qualcomm, LTE Direct Proximity Services, https://www.qualcomm.com/invention/technologies/lte/direct (last visited Sept. 25, 2017) (asserting that device-to-device technology protects location privacy because it “allow[s] the devices to discover others without revealing their own identity or exact location”). Similarly, all major cell-service providers now offer built-in wi-fi calling, which may reduce providers’ access to “network location information.” Lennart Norell et al., Wi-Fi calling - extending the reach of VoLTE to Wi-Fi, Ericsson Review 1, 3-5 (Jan. 30, 2015), https://www.ericsson.com/ *28 res/thecompany/docs/publications/ericsson_review/2015/er-wifi-calling.pdf. Because the Court “risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear,” it should decline petitioner’s invitation to consider the Fourth Amendment’s application in hypothetical circumstances not presented by the facts of his case. City of Ontario v. Quon, 560 U.S. 746, 759 (2010). ii. In any event, petitioner errs in suggesting that the sensitivity of information in a third party’s records triggers a reasonable expectation of privacy in those records.7

The application of the third-party doctrine does not depend on the quantity of information disclosed to the third party or on how revealing or incriminating that information may be. Records of the telephone numbers a person dials may reveal intensely personal information about her associations. See Smith, 442 U.S. at 748 (Stewart, J., dissenting) (observing that such records “easily could reveal the identities of the persons and the places called, and thus *29 reveal the most intimate details of a person’s life”).8 Records detailing every banking transaction an individual conducts likewise may contain sensitive information about her finances, spending habits, and financial relationships. Miller, 425 U.S. at 451

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(Brennan, J., dissenting) (observing that “the totality of bank records provides a virtual current biography” because “[i]n the course of such dealings, a depositor reveals many aspects of his personal affairs, opinions, habits and associations”) (citation omitted). Despite the sensitivity of that information, this Court has recognized that disclosure to a third party vitiates a reasonable expectation that the information will remain private, “even if [it] is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” Id. at 443 (majority opinion). Accepting petitioner’s argument about sensitive third-party records would not provide a way to distinguish Smith and Miller, but would instead represent a stark departure from their rationales. Petitioner’s contention (Br. 37-38) that “the ‘third party’ doctrine *** can be overcome when highly sensitive information is at stake” would also generate intractable line-drawing problems. Petitioner suggests no framework for determining when information conveyed to a third party should be considered sufficiently *30 sensitive that it gives rise to a Fourth Amendment interest. And investigators cannot reasonably apply the standard to determine which third-party record requests require a warrant because they cannot know the particular contents of the records or the quantity of information they contain in advance. See Atwater v. City of Lago Vista, 532 U.S. 318, 347 (2001) (observing that “a responsible Fourth Amendment balance is not well served by standards requiring sensitive, case-by-case determinations *** lest every discretionary judgment in the field be converted into an occasion for constitutional review”). Petitioner’s proposed revision of the third-party doctrine is unworkable even as applied to location information. Petitioner concedes (Br. 29-31) that individuals have no reasonable expectation of privacy in records that reveal some amount of location data. But he declines to suggest how much is too much. And it is not evident when his rule would bar investigators from accessing a variety of records that may reveal information about a person’s location or movements - from credit-card records that identify the places and times he made purchases, to IP-address records that reveal when he used a computer in a particular location, to pen-register records that show when he made calls from his home telephone, to key-card-entry records that reflect his regular hours at a gym. The practical problems posed by petitioner’s argument counsel against his innovative suggestion that individuals may claim a Fourth Amendment interest in the records of their transactions with businesses from which their location can be inferred. b. Petitioner further seeks to distinguish Miller and Smith (Br. 39-44) by contending that cell-phone users *31 do not voluntarily convey information about their location to their providers. Petitioner emphasizes (Br. 39) the importance of cell-phone use in modern society and argues that “[t]he act of possessing a cell phone, and even more so the transmission of location information, is not voluntary in any meaningful way.”

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Petitioner’s argument misunderstands the circumstances under which this Court has applied the third-party doctrine. An individual who shares information about himself in the course of obtaining a third party’s services need not necessarily be happy to expose those private details of his life to the business. Indeed, he may feel as though he has no choice if he wishes to use the third party’s services. The depositor in Miller, for example, may not have relished sharing his financial affairs with his bank, as necessary to conduct banking transactions. See 425 U.S. at 451 (Brennan, J., dissenting) (observing that the depositor’s actions were “not entirely volitional, since it is impossible to participate in the economic life of contemporary society without maintaining a bank account”). The telephone user in Smith likewise had no choice but to communicate the numbers he dialed to his telephone company, unless he was “prepared to forgo use of what for many has become a personal or professional necessity.” 442 U.S. at 750 (Marshall, J., dissenting). But this Court nevertheless found that the individuals in Smith and Miller had “voluntarily conveyed” information about themselves to third parties - even though they had no ability to avoid exposing the information short of discontinuing use of the third party’s services. Smith, 442 U.S. at 744; Miller, 425 U.S. at 442. Petitioner accordingly cannot avoid application of the third-party doctrine by observing (Br. 39) that cell *32 phones are “a pervasive and insistent part of daily life.” Riley v. California, 134 S. Ct. 2473, 2484 (2014). An individual’s decision to expose his proximity to cell towers to his cell-service provider so it can connect his calls is just as volitional as his action in exposing the numbers he dials to that provider for the same purpose - and petitioner accordingly has not offered a tenable way to distinguish Smith and Miller.

3. Cell-service providers’ use of technology supplies no basis to depart from well-established Fourth Amendment principles

Petitioner contends (Br. 10-11) that the Court should exempt cell-site records from the third-party doctrine because cell-service providers used technology to collect “a great volume” of information about him that the government could not have obtained “prior to the digital age.” The Court should reject that argument. 1. In analyzing whether a Fourth Amendment search has occurred “it is important to begin by specifying precisely the nature of the state activity that is challenged.” Smith, 442 U.S. at 741; see Jones, 565 U.S. at 404 (“It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information.”). This Court’s focus on the character of the government’s conduct reflects that the existence of a Fourth Amendment search turns on how - not just whether - information is obtained. For example, “[a] phone conversation is private when overheard by means of a wiretap; but that same conversation is unprotected if an agent is forced to overhear it while seated on a Delta flight.” Pet. App. 13a. “Similarly, information that is not particularly sensitive - say, the color of a suspect’s vehicle - might be

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protected if government *33 agents broke into the suspect’s garage to get it,” but “information that is highly sensitive - say, all of a suspect’s credit-charges over a three-month period - is not protected if the government gets that information through business records obtained per a subpoena.” Ibid. The government here obtained a third party’s business records pursuant to a court order authorized by law. The character of the government’s conduct fundamentally distinguishes this case from those in which the Court has expressed concern about the potential of new technology to erode privacy. Petitioner cites (Br. 15) Jones, supra, and Kyllo, supra, but in those cases government agents used technology to enhance their surveillance of a suspect.9 In Jones, the government surreptitiously installed a GPS tracking device on a vehicle to monitor its movements for 28 days. 565 U.S. at 402-403. And in Kyllo, the government used a thermal imaging device that was “not in general public use[] to explore details of the home that would previously have been unknowable without physical intrusion.” 533 U.S. at 40. In both cases, this Court held that the *34 government’s conduct constituted a search - a result that the Court concluded would “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Jones, 565 U.S. at 406 (brackets in original) (quoting Kyllo, 533 U.S. at 34). But the Court’s analysis in both cases made clear that the Fourth Amendment protects against particular means of acquiring information - not against the end results of that action. See id. at 408 n.5 (“[T]he obtaining of information is not alone a search unless it is achieved by *** a trespass or invasion of privacy.”); Kyllo, 533 U.S. at 35 n.2 (“The fact that equivalent information could sometimes be obtained by other means does not make lawful the use of means that violate the Fourth Amendment.”). Far from “employ[ing] new technology” in this case, Pet. Br. 10, the government used a method of obtaining evidence that was in use at least two hundred years before adoption of the Fourth Amendment: compulsory process to witnesses. See Blair, 250 U.S. at 279-280 (describing history of compulsory process dating to 1562). “[T]he general common-law principle that ‘the public has a right to every man’s evidence’ was considered an ‘indubitable certainty’ that ‘c[ould not] be denied’ by 1742.” Kastigar v. United States, 406 U.S. 441, 443 (1972). “[G]uidance from the founding era,” Riley, 134 S. Ct. at 2484, therefore confirms that the government’s conduct in seeking information about an individual from a third party has never been understood to constitute a Fourth Amendment search of that individual. 2. Petitioner’s technology-based argument accordingly must focus on the actions of his cell-service providers in collecting and recording information about which towers they used to connect his calls. Even if that *35 conduct intruded on petitioner’s privacy interests, however, the Fourth Amendment does not protect him from that private action. See United States v. Jacobsen, 466 U.S. 109, 113 (1984) (Fourth Amendment “proscrib[es] only governmental action”). And the government’s later acquisition of the providers’ business records likewise cannot

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be characterized as a Fourth Amendment search of petitioner because the government did not “exceed[] the scope” of any intrusion by the providers. Id. at 115. The Court applied those principles to reject a Fourth Amendment challenge in Jacobsen. There, employees of a common carrier opened a damaged cardboard box and saw drugs inside. 466 U.S. at 111. They notified federal agents, who reopened the box and found the drugs. Id. at 111-112. This Court concluded that the agents’ action “infringed no legitimate expectation of privacy and hence was not a ‘search’ within the meaning of the Fourth Amendment.” Id. at 120. That result “follow[ed] from the analysis applicable when private parties reveal other kinds of private information to the authorities.” Id. at 117 (citing, inter alia, Miller, 425 U.S. at 443, and Smith, 442 U.S. at 743-744). “Once frustration of the original expectation of privacy occurs” through a third party’s action, the Court explained, “the Fourth Amendment does not prohibit governmental use of the now nonprivate information.” Ibid. Accordingly, the “Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated.” Ibid. To the extent the cell-service providers intruded on petitioner’s privacy interests by recording which towers they used to route his calls, the government played no *36 role in that conduct. Petitioner’s providers created and maintained those cell-site records for their own business purposes. See Pet. App. 10a. They chose when to collect tower information and how long to retain those records. Indeed, the government has far less to do with the record collection here than in Miller, where federal law mandated that banks keep records of banking transactions. 425 U.S. at 443. Here, the cell-service providers not only decided what cell-site records to keep, but whether and when to use the data they collected for commercial purposes. See p. 3, supra. Because the government’s acquisition of the providers’ records did not reveal any information that the providers had not already themselves obtained, the Fourth Amendment does not protect against disclosure of the cell-site information. 3. Petitioner contends (Br. 44-47) that applying the third-party doctrine to cell-site records will permit unregulated government acquisition of all digital information in a third party’s possession, including email content. That argument ignores the distinction between information conveyed to the provider and information conveyed to others that the provider merely carries, transports, or stores. Moreover, the government faces various limitations on its ability to collect data from third parties, and policymakers can enact additional privacy protections if society deems them warranted. a. Application of the third-party doctrine here does not mean (Pet. Br. 45) that “people would have no reasonable expectation of privacy even in their emails, because the contents of those communications are shared with a third party.” The Court has made clear that individuals *37 who rely on a third party to deliver their

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communications do not thereby lose an expectation of privacy in the contents of those communications. See Ex parte Jackson, 96 U.S. 727, 733 (1878). Thus, a person who mails a private letter retains a legitimate expectation of privacy in its contents, even though the letter travels through the hands of postal carriers en route to its destination. Ibid. At the same time, no privacy expectation exists in the routing information conveyed to the carriers to facilitate the delivery. See ibid. The differential treatment of those categories of information turns on whether the information has been communicated to the providers or merely passes through their communications networks, with no general right of the provider to use or control the contents. From the providers’ point of view, “the content of personal communications is private” but “the information necessary to get those communications from point A to point B is not.” Pet. App. 9a. Petitioner is therefore wrong to assert (Br. 47) that “there is no way to distinguish emails” from cell-site records. Cell-phone users do not convey the content of their emails, calls, and text messages to their cell-service providers for the providers’ unrestricted use. But the users do convey information to their providers about the users’ proximity to particular cell towers to enable the routing of those emails, calls, and text messages. Applying the third-party doctrine to business records that providers create from that routing information, which pertain to the customers’ use of the providers’ towers, accordingly would not undermine *38 Fourth Amendment protection for the content of those private communications.10

b. Petitioner states (Br. 46) that individuals today disclose a “vast array of information” about themselves to third parties when using those parties’ services. See also Jones, 565 U.S. at 417 (Sotomayor, J., concurring). Third parties’ business records thus may contain increased quantities of information, as individuals choose to disclose that information to obtain desired services. But the character of the government’s conduct - using compulsory process to obtain those records - has not changed. That conduct therefore is still not a Fourth Amendment search of the customer. Petitioner expresses concern (Br. 14) that applying the third-party doctrine to records of his tower connections will leave all such data beyond constitutional control, making it possible for the government to collect all Americans’ cell-site data for all time. That is incorrect. Providers have Fourth Amendment rights and may enforce well-established limits on the government’s ability to request their business records, including protections *39 against arbitrariness, overbreadth, and burdensomeness. See pp. 44-45, infra. That framework, enforceable through pre-compliance judicial review, can protect against “dragnet” collection efforts (Pet. Br. 45), even though individual customers cannot claim to have been searched. Cf. United States v. Knotts, 460 U.S. 276, 283-284 (1983) (reserving judgment on whether the Fourth Amendment may apply differently to “dragnet-type law enforcement practices”). The use of compulsory process also requires legislative authorization, see p. 44, infra, thus ensuring democratic accountability and legislative balancing of societal needs and individual interests, as appropriate for

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emerging technologies. Limitations other than the Fourth Amendment also apply. The First Amendment regulates acquisition or use of information to suppress free speech or association, and equal protection principles protect against “intentionally discriminatory application of laws.” Whren v. United States, 517 U.S. 806, 813 (1996). Those guarantees protect against abusive acquisition of cell-site records - just as with acquisition of banking records or pen-register records of numbers dialed. Petitioner states (Br. 56-57) that investigators act unreasonably by requesting cell-site data spanning the weeks surrounding a crime. But collection of data before and after an unsolved crime is not arbitrary. Because cell-site records cannot identify an individual’s exact location within a tower’s coverage area, several weeks of data can help establish whether an individual’s phone frequently connects to that tower - which could be “relevant” in determining whether the individual was at the crime scene or instead “had other reasons for being in that neighborhood.” J.A. 128. Access to multiple weeks of data can also help officers confirm or refute *40 the possibility that the suspect frequently loans his phone to others, and did not possess it at the relevant time, thus exonerating the innocent. In any event, as with any demand for third-party records, courts can step in if law enforcement requests are excessive. See p. 45, infra.

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