From Historical Cell-Site Location Information to IMSI-Catchers: Why Triggerfish Devices Do Not Trigger Fourth Amendment Protection

Case Western Reserve Law Review Volume 68 | Issue 1 2017 From Historical Cell-Site Location Information to IMSI-Catchers: Why Triggerfish Devices Do Not Trigger Fourth Amendment Protection Kristi Winner Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Recommended Citation Kristi Winner, From Historical Cell-Site Location Information to IMSI-Catchers: Why Triggerfish Devices Do Not Trigger Fourth Amendment Protection, 68 Case W. Res. L. Rev. 240 (2017) Available at: https://scholarlycommons.law.case.edu/caselrev/vol68/iss1/13 This Comments is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Case Western Reserve Law Review·Volume 68·Issue 1·2017 From Historical Cell-Site Location Information to IMSICatchers: Why TriggerFish Devices Do Not Trigger Fourth Amendment Protection Contents Introduction ................................................................................... 243   I.   The Basics of Cellular Technology, CSLI, and IMSICatchers. ................................................................................ 246   A.   Historical Cell-Site Location Information. ...................................... 246   B.   Prospective Cell-Site Location Information ..................................... 249   II.   IMSI-Catchers. ........................................................................ 250   A.   Origins—The Birth of the StingRay. .............................................. 251   B.   The Secrecy Behind the Use of IMSI-Catchers. ............................... 253   C.   Technology of IMSI-catchers. ........................................................ 255   III.   The Legal Standard Needed to Obtain CSLI......................... 257   A.   Statutory Authority for Historical CSLI. ........................................ 257   B.   Statutory Authority for Prospective CSLI ....................................... 258   C.   IMSI-Catchers and the Law. ......................................................... 260   IV.   The Fourth Amendment .......................................................... 262   A.   Evolution of the Fourth Amendment and Technology ....................... 262   B.   How Courts Have Applied the Fourth Amendment to CSLI. ............. 266   V.   IMSI-Catchers and the Fourth Amendment. .......................... 269   A.   The Third-Party Doctrine ............................................................. 269   B.   Surveillance in Constitutionally Protected Areas. ............................ 269   C.   Reasonable Expectation of Privacy in Content Versus Non-Content Data .......................................................................................... 271   Conclusion ...................................................................................... 273   Introduction In 2011, major cell service providers in the United States received over 1.3 million requests from law enforcement officials for customer records.1 Typically, these requests are made due to an ongoing 1. Will Oremus, Law Enforcement Wants Your Private Cellphone Data. Wireless Carriers Will Hand it Over, for a Fee, Slate (July 9, 2012, 5:10 PM), http://www.slate.com/blogs/future_tense/2012/07/09/ed_markey_wireless_ 243 Case Western Reserve Law Review·Volume 68·Issue 1·2017 From Historical Cell-Site Location Information to IMSI-Catchers criminal investigation in which the government seeks to prove that a suspect was near a certain location at a certain time based on cell-site location information (“CSLI”) recorded by the service providers. In short, CSLI is a record of the cell towers to which the user’s cell phone connects when the user places and ends a phone call. This, in turn, indicates an approximate location of the cell phone. Usually, law enforcement only needs a court order to make these requests. Take, for example, United States v. Carpenter.2 In 2011, Police arrested four men suspected of robbing various RadioShack and TMobile stores in the Detroit, Michigan area.3 One of the men confessed that the group had robbed nine stores in Michigan and Ohio, and he also implicated fifteen other men.4 The man provided the FBI with the phone numbers of some of the participants.5 The FBI then obtained court orders to acquire “transactional records” from the particpants’ cell service providers for sixteen phone lines.6 The magistrate required a showing of “specific and articulable facts” that demonstrate “there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation” to issue the orders.7 The records included cell-site location information that helped to prove that two of the suspects were within a half-mile to two miles of several robberies at the time that they occurred.8 These two suspects, Timothy Carpenter and Timothy Sanders, were subsequently convicted of nine armed robberies in violation of the Hobbs Act.9 The two men appealed their convictions and sentences to the United States Court of Appeals for the Sixth Circuit. They argued that their cell-site location information should have been suppressed because acquiring the records constituted a search under the Fourth Amendment, and therefore the police needed a warrant supported by probable cause.10 The Sixth Circuit rejected this argument. The court held that the government’s collection of business records containing surveillance_report_law_enforcement_requests_private_cell_phone_data_1 _3_million_times_a_year.html [https://perma.cc/5JNH-32G9]. 2. 819 F.3d 880 (6th Cir. 2016), cert. granted, 137 S. Ct. 2211 (2017). 3. Id. at 884. 4. Id. 5. Id. 6. Id. 7. Id. 8. Id. at 885. 9. Id. at 884–85. 10. Id. at 885–86. 244 Case Western Reserve Law Review·Volume 68·Issue 1·2017 From Historical Cell-Site Location Information to IMSI-Catchers cell-site data was not a search under the Fourth Amendment because the user voluntarily relinquished the information to a third party, the service provider.11 On June 5, 2017, the Supreme Court granted certiorari to hear Carpenter in its next term.12 Although the police regularly collect CSLI without a warrant, and no apparent circuit split exists that would require Supreme Court review, the issue is ripe for certiorari. Major cell providers’ growing unwillingness to cooperate with law enforcement, even with court orders or warrants—likely due to public pressure and uncertainty in the law13 —has caused law enforcement to engage in self-help to obtain the information themselves. United States law enforcement agencies also use devices (...truncated)