Cell Phone Location Tracking: Reforming the Standard to Reflect Modern Privacy Expectations
Cell Phone Location Tracking : Reforming the Standard to Reflect Modern Privac y Expectations
Shannon Jaeckel 0 1
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1 Shannon Jaeckel, Cell Phone Location Tracking : Reforming the Standard to Reflect Modern Privacy Expectations , 77 La. L. Rev. (2016) Available at:
Cell Phone Location Tracking: Reforming the
Standard to Reflect Modern Privacy Expectations
If you are like most cell phone users today, chances are, your cell
phone is within arm’s reach of you as you read this article. Ninety-one
percent of American adults own cell phones, and nearly two-thirds of that
group own smartphones, which are cell phones with computer operating
systems.1 Many cell phone users are almost never without their phones
during the waking day.2 Even while sleeping, most users keep their cell
phones near them and usually charge their phones on a bedside table.
Immediately after waking, most cell phone users reach for their cell
phones before doing anything else.3 The International Data Corporation’s
(“IDC”) research revealed that 63% of smartphone owners keep their
phones with them for all but one hour of the day, and 79% keep their
smartphones with them for all but two hours of the day.4 The research also
showed that one in four respondents could not recall a time in the day when
the phones were not within reach or in the same room.5
As these statistics demonstrate, cell phones have transformed the way
society communicates, conducts business, organizes daily affairs, and
connects with others throughout the world.6 In modern American
society—a society accustomed to having the ability to be in constant
contact with anyone, anytime, anywhere—the cell phone has become a
Copyright 2016, by SHANNON JAECKEL.
1. Always Connected: How Smartphones and Social Keep Us Engaged, INT’L
DATA CORP., http://www.nu.nl/files/IDC-Facebook%20Always%20Connected%
20(1).pdf [https://perma.cc/9AXV-BWRU] (last visited Oct.
2. See id.
3. Research surveying American adult smartphone owners showed that within
the first 15 minutes of waking up, four out of five users check their phones, and
among these people 80% reach for their phones before doing anything else. Id.
4. Id. The IDC surveyed 7,446 American smartphone users between the ages
of 18 and 44 over the course of one week to produce this research. Id.
6. Id. See also ECPA Reform and the Revolution in Location Based
Technologies and Services: Hearing Before the Subcomm. on the Constitution, Civil
Rights, and Civil Liberties of the H. Comm. on the Judiciary, 111th Cong. 18–19
(2010) (testimony of Prof. Matt Blaze), http://judiciary.house.gov/_files/hearings
/printers/111th/111-109_57082.PDF [https://perma.cc/2JWD-ZB9B] [hereinafter
critical social, communication, and information tool.7 Cell phones today
are not a mere convenience; they are a basic necessity to many Americans
and omnipresent in nearly all aspects of life.8
Society is able to stay connected because of recent developments in
cellular technology, but with this convenience comes a significant
drawback. Law enforcement can use cell phones to track individual’s
movements with greater ease. Cell phones automatically register their
location with cell phone towers every seven seconds,9 and users cannot
deactivate this function while the phone is powered on.10 Each time a cell
phone connects to a cell tower, cell site location information (“CSLI”) data
is generated.11 This information is capable of reconstructing a cell phone
user’s specific movements minute by minute.12 Cell service providers
store CSLI in cell tower records, often for several years.13 Each year law
enforcement agencies submit millions of requests to cell service providers
for cell tower records, usually without a warrant.14 To accommodate the
large volume of data requests they receive, some cell service providers
have created detailed handbooks describing their policies for surveillance
assistance for law enforcement agents.15 Sprint has even created a website
for police to access the information conveniently with the simple click of
Although police commonly use these convenient practices, no uniform
legal standard for judicial oversight exists.17 The current laws governing
CSLI in Louisiana and elsewhere are unclear and the laws fail to balance
properly the government’s interest in executing investigations with the
competing privacy interests in location information. Requiring law
enforcement to demonstrate probable cause that CSLI will reveal evidence
of a crime and to obtain a warrant before gathering CSLI would effectively
balance these interests and provide clear guidelines for law enforcement.
Both the Louisiana Constitution and the Louisiana statutes governing
CSLI should adopt this standard. Louisiana courts should recognize the
privacy right in CSLI under Article 1, Section 5 of the Louisiana
Constitution,18 and the Louisiana legislature should enact a comprehensive
statutory scheme that sets forth clear guidelines governing all areas of
CSLI. Those guidelines should include exclusionary remedies and
exceptions to the warrant requirement so that both the courts and law
enforcement have a definitive set of rules to resolve CSLI issues.
Part I of this Comment discusses the history of CSLI technology and
the relevant federal statutes. This section explains the mechanics and
content of CSLI data; additionally, it illustrates recent advances in CSLI
technology and the importance of this information to law enforcement.
Part II analyzes the three most recent federal circuit court decisions in this
area of the law. These cases identify the analytical problems surrounding
CSLI and illustrate the extent to which courts have addressed these
problems. Part III examines state responses to CSLI with a particular focus
on how Louisiana courts and the Louisiana legislature have approached
the issue in comparison with other states. Part IV proposes that the
Louisiana legislature be proactive in adopting a comprehensive CSLI
statutory scheme rather than waiting for federal action. Specifically, the
courts should interpret the Louisiana Constitution more expansively to
provide additional privacy interest protections than currently exist under
17. Curtis, supra note 12, at 63.
18. The Louisiana Constitution provides:
Every person shall be secure in his person, property, communications,
houses, papers, and effects against unreasonable searches, seizures, or
invasions of privacy. No warrant shall issue without probable cause
supported by oath or affirmation, and particularly describing the place to
be searched, the persons or things to be seized, and the lawful purpose
or reason for the search.
LA. CONST. art. I, § 5.
federal law, and the Louisiana legislature should codify this privacy
interest and provide detailed guidelines. This solution is most apt to
resolve the problems surrounding Louisiana for two reasons. First, it will
vest a constitutionally protected interest. Second, it allows the Louisiana
legislature, which is charged with adopting policies that benefit its
citizenry, to adopt legislative rules that balance the government’s interest
in conducting effective investigations with the public’s privacy interests
I. MODERN CELL PHONE LOCATION TRACKING
Smartphones have created more detailed and advanced CSLI.19 Law
enforcement agencies routinely utilize CSLI during investigations, and
prosecutors commonly introduce CSLI as evidence in courtrooms.20 As a
result, judges and juries frequently rely on CSLI to convict criminal
defendants.21 Both the technology of CSLI and the laws controlling the
government’s use of CSLI illustrate why it has been an extraordinary tool
to the government.
A. Cell Site Location Information and Cell Tower Technology
CTIA’s Annual Wireless Industry Survey reveals that wireless
subscribers in the United States used 2.88 trillion voice minutes, 9.65
trillion megabytes of data, and sent 1.89 trillion text messages in 2015.22
Each of these connections that the wireless devices made to cell towers
generated CSLI, which the cell service provider later stored. Occasionally,
the government accessed CSLI without the wireless subscriber’s
knowledge, and in many cases without a warrant based on a showing of
probable cause. The popularity of cell phones and the plethora of purposes
for which they are used today create trillions of location data points each
year.23 The advancement of cellular technology coupled with the
proliferation of cell sites has led to voluminous, detailed, and precise cell
tower records that the government has used to its advantage in both
investigative and prosecutorial contexts.
1. The Mechanics of CSLI
To function, a cell phone constantly connects to a cellular network by
communicating with cell sites in its immediate area.24 These communications
occur when the phone sends or receives a call or text message.25 Smartphones
generate more frequent communications with the network through
applications installed on the phone.26 For example, each time the smartphone
updates an email inbox,27 shares pictures on social media, or provides
navigation data, the smartphone connects to the network.28 Cell sites, or
cell towers, are radio base stations that cellular service providers maintain
throughout their geographic coverage areas.29 A registration process
determines the particular cell site responsible for connecting the cell phone
to the network.30 As a cell phone moves throughout the coverage area, it
will periodically identify itself to cell towers within its vicinity.31 Once the
cell phone has located nearby cell towers, the phone ranks these towers
according to the strength of the signal32 and registers with the cell tower
best equipped to process a call through its radio signal’s strength.33 The
registration process occurs continuously and automatically while the
phone is turned on.34 When a phone moves away from the originating cell
site during a call, the call is “handed off” to a new tower.35 When a cell
phone is turned on and moving throughout the network, the cell service
provider tracks the tower with which the phone is registered.36 Cell phone
companies record this information in cell tower records for a variety of
Cell tower records contain detailed information such as the date and
time of calls made or received, the phone numbers called, the duration of
each call, and the cell towers that began and ended the call.38 The amount
of information that each cell service provider stores varies depending on a
cell service provider’s technology and business decisions about data
retention.39 Although some cell service providers limit cell tower record
information to the data created during the beginning and the end of a call,
other providers store all of the data, including location information
collected during a call and when the phone is idle.40 The length of time
that cell service providers store CSLI also varies.41 An increasing number
of cell service providers are opting to maintain more detailed cell tower
records.42 The trend toward detailed cell tower records will likely continue
because once a cell tower is installed, the cost of collecting and storing
detailed, frequently updated cell tower records is relatively low.43
Cell service providers are also continually building new cell towers to
accommodate the explosive consumer demand for cellular service.44 As
the number of cell towers steadily increases, the geographic area served
by each cell tower decreases.45 Several years ago CSLI could provide only
a vague picture of a person’s location.46 Presently, however, smaller cell
coverage areas allow for collection of more precise location information.47
Although some of the largest cell coverage areas in rural locales can still
be several miles in diameter, modern technology provides much more
specific locations, such as a floor or individual room in a building or
2. The Use of CSLI by Law Enforcement
As cell service providers deploy more advanced location technologies,
law enforcement will receive more precise and more valuable CSLI.49 Law
enforcement commonly uses this information to track individuals.50
Additionally, although law enforcement commonly obtains cell phone
records about a particular person, law enforcement sometimes requests
data for all phones connected to a particular tower at a particular time.51 In
response to a record request that the American Civil Liberties Union
submitted to state and local law enforcement agencies throughout the
country regarding cell phone tracking, approximately 250 police
departments responded with 2,700 pages of documents.52 The responses
revealed that although almost all of the police departments track cell
phones, very few reported consistently obtaining warrants.53
CSLI provides law enforcement with a priceless investigative tool
because many law enforcement agencies located in areas employing
advanced cellular technologies are able to calculate cell phone users’
locations with a precision that approaches that of a GPS.54 In fact, CSLI is
often more useful to law enforcement than even traditional GPS devices
for several reasons.55 First, CSLI yields some of the same results as
physical surveillance, but CSLI obviates purchasing GPS devices and
paying police officers for their time spent installing and subsequently
removing GPS devices. Thus, police departments that lack the resources
for extended GPS surveillance benefit from CSLI.56 Second, the cellular
network produces CSLI without any indication to individuals that they are
being tracked,57 whereas GPS devices, if discovered by the individual
being tracked, would alert the individual to surveillance efforts. Lastly,
CSLI allows law enforcement to track individuals in areas inaccessible to
GPS devices without a warrant because of their constitutionally protected
status, such as inside a home.58 Because cell phones have become such a
ubiquitous part of modern American life, cell phones accompany their
users everywhere,59 resulting in virtually constant surveillance in both
private and public spaces.60 GPS devices, on the other hand, attach to
specific areas or items, such as a car or container, that do not remain with
individuals as continuously as a cell phone does, thus limiting the
availability of location information collected by the GPS devices.61
Examination of cell tower records not only helps law enforcement
officials locate suspects,62 but also reveals with whom a suspect
communicates, at what time, and for how long.63 Officers gather CSLI
early in investigations and use it to generate at least part of the probable
cause justification necessary for subsequent search and arrest warrants.64
In the past several years, location data has provided law enforcement
with not only investigatory but also prosecutorial value.65 Lawyers can use
CSLI to achieve many evidentiary objectives during trial, including
destroying a suspect’s alibi and establishing presence near a crime scene
at the approximate time of the crime.66 Because establishing a defendant’s
location during the crime is often one of the most important factors to a
jury, prosecutors supplement traditional defendant location evidence, such
as eyewitness testimony and physical evidence, with cell site analysis from
CSLI to connect defendants with places relevant to the charged offense.67
Prosecutors use inferences from even fairly imprecise CSLI as key
evidence to enhance the value of the data in the jury’s eyes.68
One example of a prosecutor relying heavily on unreliable CSLI to
convict a defendant comes from State v. Adnan Syed.69 In 2000, Syed was
convicted and sentenced to life imprisonment for killing his
exgirlfriend.70 The state used cell tower data to link Syed to Leakin Park,
where the body was found.71 The prosecution had no physical evidence or
eyewitnesses tying Syed to the murder.72 The only non-CSLI evidence that
the prosecution presented was the testimony of a friend, Jay Wilds,73
which was also unreliable because Wilds changed his story to match the
cell tower records after the police confronted him with the records.74
Although either piece of evidence alone would not likely have been
sufficient to prove Syed’s guilt beyond a reasonable doubt, the prosecutors
aggressively and successfully asserted that the cell tower records
corroborated Wilds’s story.75 The CSLI available during Syed’s trial was
far less precise than the CSLI available today, but it was sufficient to
convince the jury of Syed’s guilt beyond a reasonable doubt. The precision
of CSLI and the frequency of cell phone use today as compared to in 2000
has changed drastically, and as a result, so has the need for protection of
privacy interests in location information.
B. Electronic Communications Privacy Act
Congress passed the Electronic Communications Privacy Act
(“ECPA”) in 1986 to expand and revise federal wiretapping and electronic
eavesdropping laws.76 Congress sought not only to “create a fair balance
between the privacy expectations of citizens and the legitimate needs of
law enforcement,” but also to “support the creation of new technologies
by assuring consumers that their personal information would remain
safe.”77 The ECPA consists of several sets of laws governing the collection
and disclosure of both content and non-content information related to
electronic communications,78 including the Pen Register Statute79
controlling real-time CSLI and the Stored Communications Act (“SCA”)80
controlling historical CSLI. The ECPA was originally enacted during a
considerably different technological era.81 Although Congress has updated
the ECPA several times, the statute—particularly the SCA provisions
controlling disclosure of cell tower records—has failed to keep pace with
changes in cellular technology and the way it is used.82
The primary statute that governs the disclosure of historical CSLI is
the SCA.83 Historical CSLI reveals data generated during past cell phone
connections to cell towers.84 Barring subscriber consent, the statute
requires the government to obtain a warrant or a court order before
compelling disclosure of historical CSLI.85 A warrant authorizing
disclosure requires an impartial magistrate to find probable cause.86
Section 2703(d) mandates that a court of competent jurisdiction issue a
court order for disclosure “only if the governmental entity 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.”87 The Section 2703(d) standard requiring specific
and articulable facts is essentially a reasonable suspicion standard.88 The
probable cause standard for securing a warrant is substantially higher than
the specific and articulable facts standard required for a Section 2703 court
order.89 Although the probable cause standard requires that the information
sought be evidence of a crime,90 the Section 2703(d) standard allows the
government to seek any information that is materially relevant to an
ongoing investigation.91 The Section 2703(d) standard thus permits
acquisition of CSLI that will yield not necessarily evidence of a crime but
rather information that will somehow aid in the investigation of a crime,92
which permits broader inquiries into a wider range of targets.93
Despite the significant disparities in the level of proof required for a
warrant versus a Section 2703(d) order, Section 2703 offers no express
direction about when the government should seek a warrant as opposed to
an order.94 Although the sealed nature of the government’s requests makes
knowing the full scope of such inquiries impossible, the lesser standard
and anecdotal evidence suggest that the Section 2703(d) standard has
facilitated much more information gathering than the probable cause
standard would permit.95 The statute’s lack of clear guidance has sparked
much debate over the proper standard of proof required to obtain CSLI
under the SCA.
Real-time CSLI is governed by 18 U.S.C. Section 3122, commonly
known as the Pen Register or Trap and Trace Statute.96 Real-time CSLI
shows cell phone connections to cell towers as they actually occur.97 The
Pen Register statute also requires the government to obtain a court order
before compelling disclosure of cell tower data. A Section 31
order requires a “certification by the applicant that the information likely
to be obtained is relevant to an ongoing criminal investigation being
conducted by that agency.”98 Thus, the standard for a Section 3122 court
order is even lower than the Section 2703(d) standard in that, unlike the
Section 2703(d) order, the applicant need not demonstrate specific and
articulable facts demonstrating the real-time CSLI’s relevance to the
The ECPA does not achieve the goals Congress intended in balancing
the interest of the government in prosecution with the interest of the public
in privacy. Both Section 2703(d) and Section 3122 provide the
government with open avenues to obtain CSLI without a showing of
probable cause and, thus, do not have restrictions necessary to prevent
violations of privacy. Although the ECPA serves the needs of law
enforcement by allowing almost unfettered access to CSLI during
investigations, the ECPA fails to strike an appropriate balance between the
needs of law enforcement and the privacy interests of citizens. The
significant inequities in this balancing equation have given rise to
litigation that has sharply divided courts throughout the country.99
II. THE CELLULAR CIRCUIT BOARD SPLIT
Advances in cellular technology have forced courts to reconsider
whether to follow the legal standards that governed individual privacy
rights during a much earlier time or to alter them in light of the newest and
most prevalent method of search—CSLI tracking.100 Current Supreme
Court jurisprudence governing the search doctrine fails to consider new
cellular technologies and thus does not provide guidance to lower
courts.101 The United States courts of appeals, faced with the issue of what
standard of proof should apply to obtain CSLI, have attempted to reconcile
the rapidly evolving technological landscape with unsettled, 30-year-old
Fourth Amendment precedent.102 Although each court has framed the issue
by reference to the overarching question of whether individuals have a
legitimate privacy interest in location information, the courts’ differing
conclusions have created a federal circuit split.
A. Inside the Circuit Board: Fourth Amendment Precedent Controlling the Inquiry
The CSLI analysis implicates multiple strands of Fourth Amendment
jurisprudence and courts have generally used two constitutional
approaches—the third-party doctrine and the analogy to GPS tracking
cases.103 Some courts use the third-party doctrine to justify government
access to CSLI without a warrant.104 Other courts have focused on drawing
comparisons to GPS tracking cases when formulating a stricter Fourth
Amendment rationale to strike down government access to CSLI.105
The two-pronged test established by Katz v. United States answers the
overarching question of whether citizens have a privacy interest in their
CSLI.106 In Katz, the Supreme Court held that the attachment of an
eavesdropping device to a public phone booth, which recorded the
defendant’s conversation, was a search under the Fourth Amendment.107
Justice Harlan’s concurrence set forth the operative test used to answer the
question of whether an activity constitutes a search within the meaning of
the Fourth Amendment.108 First, a person must have “exhibited an actual
(subjective) expectation of privacy” and, second, that expectation must be
one that “society is prepared to recognize as reasonable.”109 The Katz
reasonable expectation of privacy test has been influential: it determined
the outcome of landmark Supreme Court cases involving assisted
surveillance and continues to guide Fourth Amendment search inquiries
1. The Third-Party Doctrine
The federal circuits have reached different conclusions about whether
the third-party doctrine, established in Smith v. Maryland,111 is applicable
to CSLI.112 In Smith, law enforcement used a pen register device without
a warrant to record phone numbers dialed by the suspect’s private
phone.113 The Court held that no legitimate privacy expectation or Fourth
Amendment protection existed in the record of phone numbers that a
person dials.114 The Court reasoned that because the caller voluntarily
provides the phone numbers dialed to the phone company, which keeps
record of phone numbers in its normal course of business, the caller could
claim no legitimate privacy expectation in that information.115 Thus, under
the third-party doctrine, an individual maintains no legitimate expectation
of privacy in information that is voluntary disclosed to third parties.116
Since Smith in 1979, however, technological advancements have
raised doubts as to whether the third-party doctrine remains applicable. In
United States v. Jones, the Court held that installation of a GPS device on
a suspect’s car constituted a search under the Fourth Amendment and
required probable cause and a warrant.117 Although the majority opinion
relied primarily on the notion of trespass, Justice Sotomayor’s concurring
opinion focused on reasonable expectations of privacy.118 She noted that
the third-party doctrine was “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.”119
Justice Sotomayor also reasoned that a trespass analysis is not
applicable in surveillance situations that involve the mere transmission of
electronic signals.120 Instead, she emphasized the importance of reasonable
expectations of privacy and how technological evolutions shape societal
expectations.121 Justice Sotomayor analyzed particular attributes of GPS
technology that are relevant to the Katz analysis, such as the ability of GPS
to “generate 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.”122 Justice Sotomayor also
expressed concerns about the government’s ability to collect substantial
amounts of private information about individuals at a low cost and with
minimal restraints, which leads to police abuse.123
This observation is particularly applicable in the CSLI context because
in the past, the substantial government time and resource expenditures
required for extensive tracking and monitoring operated as a check on
abusive law enforcement practices. With the ease of electronic tracking
and monitoring, however, these checks no longer exist.124 As Justice
Sotomayor suggested, when applying the Katz analysis to electronic
surveillance methods such as CSLI tracking, the more central Fourth
Amendment issue should be “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.”125 Modern society expects these types of
details to remain private, regardless of how or whether the information
revealing these intimate details ultimately comes into a third party’s
118. Id. at 955.
119. Id. at 957 (Sotomayor, J., concurring). Justice Sotomayor refused the
assumption that all of the information “voluntarily disclosed to some member of
the public for a limited purpose” while carrying out their everyday tasks is “for
that reason alone, disentitled to Fourth Amendment protection.” Id.
120. See id. at 955.
123. Id. at 956 (quoting United States v. Cuevas-Perez, 640 F.3d 272, 285 (7th
Cir. 2011) (Flaum, J., concurring)).
124. Tracey v. State, 152 So.3d 504 (Fla. 2014).
125. Jones, 132 S. Ct. at 956 (Sotomayor, J., concurring).
possession.126 Thus, the Katz reasonable expectation of privacy test might
be the more appropriate doctrine to apply to CSLI because it is more suited
for adaption to advancements in technology.
2. The GPS Tracking Trilogy: Knotts, Karo, and Kyllo
Three relevant Supreme Court cases involving technological surveillance
further inform the CSLI inquiry: U.S. v. Knotts,127 U.S. v. Karo, 128 and Kyllo
v. U.S.129 Knotts and Karo involved the installation of beepers inside chemical
containers to track the defendants’ locations.130 In Knotts, the police used the
beeper to follow the defendant on public roads to a remote cabin.131 The
Court held that because the beeper simply enhanced law enforcement’s
ability to follow the car while it was on public roads, where anyone can
observe an individual, the defendant had no reasonable expectation of
privacy in his location on public streets.132 In Karo, the Court held that the
monitoring of the beeper while the container was inside Karo’s private
residence, where an individual does have a legitimate privacy expectation,
would be a Fourth Amendment violation absent a warrant based on
probable cause.133 The Court further explained that using an electronic
device without a warrant to infer facts that visual surveillance could not
reveal, such as whether a particular item is located inside a private
residence or to confirm later that the item remains inside the residence, is
an unreasonable search under the Fourth Amendment absent a warrant.134
The Court ruled that this type of location tracking “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, regardless
of whether the tracking reveals information directly or through
In Kyllo, the government used a thermal imaging device, classified as
a tracking device, to determine whether the home was emitting a high level
of heat, which is indicative of indoor marijuana cultivation.136 The
government then obtained a warrant based on the information they
gathered from the thermal imagining device, which led to the discovery of
a marijuana-growing operation inside the suspect’s house.137 Finding that the
home is entitled to privacy protections, the Court held that when the
government discovers details about the home’s inside that are unknowable via
traditional visual surveillance through a device not in general public use, a
Fourth Amendment search has occurred.138 The device did not reveal any
private activities occurring inside the home, but this fact was unimportant to
the Court’s determination because the Fourth Amendment’s protection of the
home is not related to the quality or quantity of information discovered.139 The
Court reasoned that limiting the prohibition on thermal imaging devices to
only intimate details would result in an impractical and unworkable test.140
Thus, the Court held that the details discovered were intimate because they
revealed information about the activities inside the home, therefore entitling
such information to Fourth Amendment protection from unreasonable
searches.141 Although none of the Fourth Amendment jurisprudence
speaks directly to the issue of CSLI, courts have analogized the attributes
of CSLI tracking to GPS monitoring. Because CSLI arguably shares some
of the same attributes as a GPS device but simultaneously serves as
thirdparty record, the conclusions that the courts have reached vary.
B. The Fifth Circuit’s Approach
In In Re Application of the United States for Historical Cell Site Data,
federal authorities submitted a Section 2703(d) court order for CSLI in
connection with three separate criminal investigations.142 The magistrate
judge denied the request and held that historical CSLI required a
warrant.143 The district court agreed.144 On appeal, the United States Court
of Appeals for the Fifth Circuit applied the third-party doctrine, holding
that CSLI is “clearly a business record” because “the cell service provider
collects and stores historical cell site data for its own business
purposes.”145 The court assumed not only that cell phone users understand
that the mere use of a cell phone conveys location information to a service
provider, but also that they are aware that cell service providers retain this
information and give it to law enforcement upon request.146 The court
relied on cell phone users’ understanding that cell phones must send
signals to cell towers to connect calls in support of its assumption that cell
phone users necessarily know that location information is conveyed.147
Lastly, the court stated that even if cell-phone-to-tower signal transmission
was not common knowledge, the contractual terms of service and privacy
policies notify users that a provider collects this information and will
release these records to government officials if the provider receives a
The Fifth Circuit drew several assumptions regarding the extent of cell
phone user awareness relating to CSLI practices.149 A recent study that the
Federal Trade Commission conducted, however, appears to contradict
directly the assumptions upon which the Fifth Circuit relied in reaching its
holding.150 The study revealed that most consumers are unaware of the
extent of the data collection and storage occurring on their mobile
devices.151 The study further revealed that when researchers alerted
consumers to these practices, “consumers are typically surprised and view
these practices as underhanded.”152 Studies have also shown that cell
phone users often do not read or understand their providers’ privacy
policies.153 Therefore, these research findings, which raise doubts about
whether the public knows or has even considered cell phone providers’
practices,154 are inconsistent with the assumptions that the Fifth Circuit
C. The Eleventh Circuit’s Approach
United States v. Davis involved an investigation of several armed
robberies over a two-month period.155 After Davis’s arrest, the government
applied to a federal magistrate judge for a Section 2703(d) court order.156 The
magistrate judge’s order granted the request and the cell service provider
complied.157 The prosecution later used the information gathered under the
authority of this court order to argue that Davis was near the robbery
locations when the robberies occurred.158 On rehearing, the en banc panel
held that the Section 2703(d) court order did not violate the Fourth
Amendment because Davis had no reasonable expectation of privacy in
the cell tower records.159 Adopting the Fifth Circuit’s reasoning, the court
concluded that the third-party doctrine controlled the disposition of the
case.160 The court applied the Katz reasonable expectation of privacy test
and held that even if Davis had a subjective expectation of privacy, the
expectation was objectively unreasonable because there is no evidence that
cell phone users are unaware of the functions of cell towers or the
recordation of cell tower usage.161
Noting the limited nature of Davis’s CSLI,162 the court stated that
Davis’s CSLI was too imprecise to paint a detailed, accurate picture of his
personal activities.163 Notably, however, the cell phone technology used in
Davis was significantly older and less advanced than today’s technology.164
Thus, whether the court would have reached the same result if the
technology used in Davis were capable of generating more comprehensive
and precise CSLI is questionable. The Davis court noted that Davis used an
older cell phone, which provided no real-time tracking, no location data
associated with his text messages, and no Wi-Fi-based location
surveillance,165 even in the relatively urban area of South Florida.166 Had
Davis been using the cellular technology that the majority of cell phone
users currently use—a smartphone—the CSLI released to law enforcement
would likely have conveyed significantly more details of Davis’s personal
life. Some commentators have suggested that in light of this distinction, the
Davis ruling should not be read as justifying cell phone location tracking;
rather, the ruling delayed the resolution of the question.167 Because the
Eleventh Circuit decided Davis in 2015, the holding’s failure to consider law
enforcement’s current utilization of CSLI is surprising. As a result, the Davis
decision looks backward rather than forward because it applies to monitoring
that is several years old—before new technology such as smartphones
allowed for collection of more detailed and precise CSLI.168
D. The Fourth Circuit’s Approach
In United States v. Graham, two defendants were charged for a series
of armed robberies in Baltimore, Maryland.169 The police obtained two
Section 2703(d) court orders directing cell service providers to disclose
221 days of historical CSLI.170 The cell service providers complied with
the order, revealing 29,659 location data points for defendant Graham and
28,410 for his co-defendant Jordan.171 Unlike the Fifth and Eleventh
Circuits, the United States Fourth Circuit held that the government’s
warrantless procurement of CSLI amounted to an unreasonable search in
violation of the Fourth Amendment.172 The court classified this practice as
a Fourth Amendment search because examination of a person’s CSLI
enables the government to track the movements of a cell phone and thus
its user across public and private spaces and to discover the user’s private
activities and personal habits.173 In reaching this conclusion, the court
referenced both the third-party doctrine and the GPS tracking cases.
The court analogized examination of historical CSLI to GPS tracking,
reasoning that like the searches in Karo and Kyllo, CSLI allows the
government to place individuals and their personal property—their cell
phones—at their homes and other private locations at specific points in
time.174 The court emphasized that unlike the single instances in Karo and
Kyllo, 221 days of CSLI could likely place each defendant at home on not
one, but several occasions.175 The court further explained that the Supreme
Court in Karo and Kyllo recognized the location of individuals and their
property within a particular time as “critical” private details protected from
the government’s intrusive use of technology.176
Although extended CSLI monitoring is likely to place an individual in
private locations on various occasions, this scenario does not always
occur. For instance, if a cell phone is turned off or makes few or no
connections to the network, the likelihood of private details being revealed
is lower. Recognizing this possibility, the court emphasized that “the
government cannot know in advance of obtaining CSLI exactly how
revealing it will be or whether it will detail the cell phone user’s
movements in private spaces.”177 The Fourth Circuit also rejected the
district court’s assertion that CSLI is insufficiently precise in identifying
locations to invade a reasonable privacy expectation.178 The court stressed
that cell service providers are improving their networks by installing
lower-power cell towers that are capable of covering areas as small as 40
feet,179 and when analyzing issues involving CSLI, courts must take such
technological developments into account.180
The Graham court adopted a forward-looking approach that considers
the increasing precision that CSLI continues to provide. Decisions in
which holdings are limited to only the specific facts and technology before
the court are less able to account for the current state of CSLI tracking,
which is detailed, easily accessible to law enforcement, and increasingly
precise.181 By recognizing the intense competition among cell service
providers and the likelihood of continuing use of small cells, the Fourth
177. Id. at 349–50.
178. Id. at 350.
179. Id. at 350–51.
181. See, e.g., In re Application of the United States for Historical Cell Site
Data, 724 F.3d 600, 615 (5th Cir. 2013) (recognizing the rapidly evolving
technological landscape, the court limited its holding to only historical CSLI for
specified cell phones at the points at which the user places and terminates a call
and declined to extend its holding to requests for CSLI for the duration of calls or
for when the phone is idle); United States v. Davis, 785 F.3d 498, 512 (
), cert. denied, 2015 WL 4600402
(noting that the CSLI at issue
was generated not continuously, but rather only when Davis was making or
Circuit provides an accurate analysis of the effects of warrantless CSLI
collection on individuals today.182
Finding that cell phone users do not convey their CSLI to cell service
providers at all, voluntarily or otherwise, the court rejected the third-party
doctrine as inapplicable to CSLI.183 The court framed the relevant CSLI
inquiry not as whether an individual has a reasonable expectation of
privacy in a third party’s records, but rather as whether an expectation of
privacy in an individual’s locations and movements over time is
reasonable.184 Because the specificity with which CSLI identifies cell sites
allows users’ locations to be tracked raises privacy concerns,185 the court
found the pertinent question to be whether users are generally aware of
which specific cell sites are utilized when their phones connect to the
network.186 Finding that overall, cell phone users do not know which
particular cell site transmits their communications or even the general
location of nearby cells sites, cell phone users do not and cannot
voluntarily convey information to their service provider.187
The federal circuit court opinions leave several questions critical to
resolving the CSLI debate unanswered. One question is whether cell phone
users forfeit any legitimate expectation of privacy in their CSLI when
using a cell phone because of the third-party doctrine.188 Conversely, the
Katz reasonable expectation of privacy test could preserve cell phone
users’ privacy interest in CSLI, regardless of a third party, such as a cell
service provider ultimately possessing the CSLI.189 The issues of whether
advances in cellular technology have altered societal privacy
expectations190 and whether courts and legislatures ought to consider the
182. See Graham, 796 F.3d at 350–51.
183. Id. at 354. “When a cell phone receives a call or message and the user
does not respond, the phone’s location is identified without any affirmative act by
its user at all—much less, ‘voluntary conveyance.’” Id. at 355.
184. Id. at 352.
185. Id. at 356.
187. Id. at 355–56.
188. Id. at 355.
189. See, e.g., United States v. Davis, 785 F.3d 498, 512 (
11th Cir. 2015
denied, 2015 WL 4600402
(noting the strength of arguments for
changing underlying and prevailing law, such as the third-party doctrine and the
SCA, but ultimately deferring to Congress and the state legislatures on enacting
190. See, e.g., In re Application of the United States for Historical Cell Site
Data, 724 F.3d 600, 614–15 (5th Cir. 2013) (recognizing that “technological
changes can alter societal expectations of privacy” and sympathizing with “cell
phone users . . . reasonably want[ing] their location information to remain private .
strong likelihood of future technological advances when articulating these
modern privacy expectations also remains unclear.191 This remaining
uncertainty can be attributed at least in part to the limited holdings that
every circuit court has issued. As CSLI challenges surface in lower-level
state courts, however, states are beginning to articulate their own CSLI
standards of proof and rationales.
III. STATES ATTEMPT TO RESOLVE THE CSLI CONTROVERSY
As state courts began ruling on governmental access to CSLI, a divide
similar to that of federal courts has emerged over whether privacy
protections for CSLI should be afforded to individuals.192 Some states
have relied on their state constitutions, which provide greater privacy
protections than the Fourth Amendment, to afford additional protections
to their citizens.193 Other states have enacted their own state versions of
the ECPA, which explicitly require a warrant for CSLI, and more states
are debating similar action.194 Unfortunately, both the Louisiana judiciary
and legislature have neglected to react to privacy concerns in the active
manner that other states have. Instead, Louisiana has left its citizens
vulnerable to privacy threats by maintaining a low standard for law
enforcement to obtain CSLI.
A. CSLI Standards Applicable in Other Jurisdictions
Courts in several states have recognized a reasonable expectation of
privacy in CSLI and have held that a warrant based on probable cause is
the appropriate standard.195 The highest state courts in Massachusetts and
. . .”); Davis, 785 F.3d at 512 (acknowledging that “use of cell phones is ubiquitous”
today and as a result, “some citizens may want to stop telephone companies from
compiling cell tower location data or from producing it to the government”).
191. Compare In re Application of the United States for Historical Cell Site
Data, 724 F.3d at 615 (“Recognizing that technology is rapidly changing, we
decide only the narrow issues before us.”), with Graham, 796 F.3d at 351 (“The
intense competition among cellular networks provides ample reason to anticipate
increasing use of small cells and, as a result, CSLI of increasing precision. We
must take such developments into account.”).
192. See generally State v. Earls, 70 A.3d 630
; Commonwealth v.
Wyatt, No. 11-00693, 2012 WL 4815307 (Mass. Aug. 7, 2012); Tracey v. State,
152 So. 3d 504 (Fla. 2014).
193. See generally Earls, 70 A.3d 630; Wyatt, 2012 WL 4815307.
194. McKeown, supra note 154, at 2054–55.
195. See generally Earls, 70 A.3d 630; Wyatt, 2012 WL 4815307; Tracey, 152
So. 3d 504. In Tracey v. State, the Florida Supreme Court relied on the Fourth
New Jersey relied on their respective state constitutions to afford these greater
privacy protections.196 These courts have recognized the reasonable
expectation of privacy in the increasing level of detailed information that cell
phones can reveal about an individual’s personal life and the indispensable
nature of cell phones in modern society.197 Consequently, both states’ courts
have held that the police must obtain a warrant based on probable cause before
obtaining CSLI unless they have met an exception to the warrant
requirement.198 Both courts viewed the use of CSLI as a way of effectively
transforming a cell phone into a GPS tracking device because the information
that both convey allows an individual’s daily movements to be tracked and
disclosed.199 The courts also rejected the third-party doctrine approach, noting
that CSLI is not a voluntary disclosure because cell phone users do not take
any affirmative or overt action to convey their CSLI to cell service
providers.200 Users can avoid conveying location information only at the price
of not using a cell phone, which has become a personal and professional
necessity for the majority of the population.201 In both cases, however, the
courts were careful to restrict their holdings squarely within the confines of
their state constitutions and declined to extend their holdings to the Fourth
Some state legislatures have passed legislation governing CSLI
disclosure procedures to actively protect CLSI private interest. In 2013,
Montana became the first state to enact legislation that requires law
enforcement to obtain a warrant to access CSLI.203 The law is comprehensive
for several reasons. One is that it establishes a clear burden of proof.204
Another is that the law enumerates various circumstances in which the
government’s failure to obtain a search warrant will be justified, such as
when a cell phone is reported stolen by the owner, when the government
responds to a cell phone user’s call for emergency services, and when a
life-threating situation exists.205 The law establishes bright-line rules for
situations in which law enforcement obtains CSLI without a warrant and
no warrant exceptions apply. In these scenarios, the law prohibits CSLI
from being “used in an affidavit of probable cause in an effort to obtain a
search warrant,” and it will not be admissible “in a criminal, civil, or
administrative proceeding.”206 The violator is also assessed a civil fine.207
Several other states have followed Montana’s example by passing similar
legislation.208 Over a dozen other state legislatures, including Louisiana’s
neighbor, Texas, have taken strides toward updating their laws to require
warrants for CSLI.209 The recent legislative movement among state
legislatures further supports the notion that societal privacy expectations
are evolving to include interests in keeping CSLI confidential.210
B. The Lack of a Clear Standard in Louisiana
Although many other states have reevaluated privacy interests in light
of technological advancements, Louisiana has not. Louisiana law
enforcement practices pose an even greater threat to privacy interests than
the procedures that the SCA outlines because law enforcement routinely
accesses CSLI with ordinary subpoenas.211 To obtain CSLI under the
subpoena standard, Louisiana law enforcement need show only that the
information it seeks is relevant or necessary to the case.212 Prosecutors
frequently use subpoenaed CSLI as evidence to convict defendants.213
Louisiana courts consistently allow CSLI to be admitted into evidence,
but rarely give consideration about whether such a low standard of proof is
an unlawful violation of Louisiana citizens’ privacy rights and interests.214
In State v. Marinello,215 the defendant objected to the introduction of his cell
phone records into evidence because the state should have been required to
obtain a warrant for the records, rather than use a subpoena.216 The court
quickly dismissed this argument, however, and held that the subpoena was
sufficient.217 Because the records were kept in the cell service provider’s
ordinary course of business for billing and troubleshooting purposes, and
because the data was limited to historical CSLI, the records implicated
neither Fourth Amendment privacy protections nor Louisiana Constitution
Article 1, Section 5 privacy protections.218
The defendant in Marinello also advanced a statutory law based
argument, which the court rejected. Specifically, the defendant argued that
the Louisiana Pen Register Statutes required the state to apply for the
information.219 Citing to Louisiana Revised Statutes Section 15:1302(15),
the court ruled that the Pen Register statute specifically excludes CSLI.220
Louisiana’s Pen Register and Trap and Trace statutes provide that law
enforcement may apply for a court order authorizing the use of a pen register
or trap and trace device upon certification that “the information sought is
relevant to an ongoing felony criminal investigation” and a recital of “facts
or information constituting the reasonable suspicion upon which the
application is based.”221 On its face, the Louisiana version of the Pen
211. See, e.g., State v. Banks, No. 12-135, 2012 WL 5416967
(La. Ct. App.
Nov. 7, 2012)
; State v. Bone, 107 So. 3d 4
9 (La. Ct. App. 2012
); State v. Jackson,
132 So. 3d 516 (La Ct. App. 2014).
212. Bank of New Orleans and Trust Co. v. Reed Printing & Custom Graphics,
399 So. 2d 1260, 1261 (La. Ct. App. 1981).
213. See, e.g., Banks, 2012 WL 5416967; Bone, 107 So. 3d 49; Jackson, 132
So. 3d 516.
215. 49 So. 3d 488 (La. Ct. App. 2010).
216. Id. at 508–09.
217. Id. at 509.
218. Id. at 510.
221. LA. REV. STAT. ANN. § 15:1314 (2016).
Register statute appears to govern real-time CSLI in the same way that the
federal Pen Register statute does. The Marinello opinion, however, suggests
that the Louisiana Pen Register statute is wholly inapplicable to CSLI because
of Louisiana Revised Statute Section 15:1302(15), which defines the term
“pen register” for the chapter’s purposes. The revised statute excludes from
the meaning of “pen register” devices that a cell service provider uses “in the
ordinary course of the provider’s . . . business” for purposes including “billing
or recording as an incident to billing for communications services” or “other
ordinary business purposes.”222 Because cell towers generate cell tower
records, which a cell service provider uses in the ordinary course of its
business, the Marinello court concluded that CSLI does not fall within the
ambit of the Louisiana Pen Register statute.223
The ease with which law enforcement accesses and utilizes CSLI to
generate detailed accounts of a person’s movements over time poses a
serious threat to personal privacy. Knowing a person’s location over time
reveals who individuals are and what they value.224 Furthermore, this
investigation occurs without alerting individuals that law enforcement is
tracking them. The Louisiana courts’ reluctance to fully address CSLI
privacy concerns coupled with the lack of clear legislative guidelines
governing compelled CSLI disclosure has resulted in an unclear area of
the law that fails to adequately protect the privacy interests of Louisiana
IV. SOLVING THE LOUISIANA CSLI PROBLEM
Current Louisiana statutory law sets a low standard for law enforcement
to obtain CSLI.225 Dramatic technological advances, particularly in the
context of cellular technology, have resulted in an evolution of societal
privacy expectations, which include privacy interests in the locations
individuals visit, those with whom individuals associate, and other personal
activities, regardless of the decision to carry a smartphone.226 Louisiana
222. LA. REV. STAT. ANN. § 15:1302(15) (2016).
223. Marinello, 49 So. 3d at 510.
224. See id.
225. See, e.g., LA. REV. STAT. ANN. § 15:1315 (2016).
226. A recent Pew Research Center survey shows that 91% of adults agree or
strongly agree that “consumers have lost control over how their personal information
is collected and used by companies.” MARY MADDEN, PEW RES. CTR., PUBLIC
PERCEPTIONS OF PRIVACY AND SECURITY IN THE POST-SNOWDEN ERA 3 (2014),
h t t p : / / w w w . p e w i n t e r n e t . o r g / f i l e s / 2 0 1 4 / 1 1 / P I _ P u b l i c P e r c e p
tionsofPrivacy_111214.pdf [https://perma.cc/3GJA-G32P]. The survey further
law should also advance to provide adequate protections for these recently
emerging privacy interests, and both the Louisiana courts and the
Louisiana legislature have a role to play in ensuring this change.
A. Expansive Constitutional Interpretation
Similar to the superior courts in New Jersey and Massachusetts,
Louisiana courts should interpret the Louisiana Constitution to provide a
greater level of CSLI privacy protections to Louisiana citizens. Article 1,
Section 5 of the Louisiana Constitution offers greater privacy protections
than the Fourth Amendment of the United States Constitution because it
incorporates language that supplies a separate right of privacy, as well as
an express protection of property, communications, houses, papers, and
effects.227 The drafters knowingly and intentionally incorporated this
language in an effort to make the Louisiana Constitution more expansive
than the United States Constitution’s Fourth Amendment.228 As a result of
this additional language, “[t]he traditional guarantee against unreasonable
searches and seizures is cemented and expanded.”229 Thus, based on the
additional language in Article 1, Section 5, constitutional interpretations
providing for greater privacy protections are not only plausible, but also
were intended by the drafters.
One interpretation of the Louisiana Constitution that Louisiana courts
should adopt to provide privacy protections for CSLI focuses on the
language in Article 1, Section 5 that grants an affirmative right to privacy.
Professor Lee Hargrave, principal architect of the Louisiana Constitution
and author of The Louisiana Constitution: A Reference Guide,230 explained
that the “key element” of this right to privacy is that “the invasions of
privacy must be unreasonable to merit constitutional protection.”231 In
evaluating the reasonableness of a particular privacy invasion, courts are
given “flexibility to determine which invasions of privacy are supported
revealed that 82% of adults feel that the details of their physical location that cell
phone GPS tracking reveals is at least “somewhat sensitive,” and half of adults
consider this information “very sensitive.” Id. at 34.
227. “Every person shall be secure in his person, property, communications,
houses, papers, and effects against unreasonable searches, seizures, or invasions
of privacy.” LA. CONST. art. I, § 5.
228. See Lee Hargrave, The Declaration of Rights of the Louisiana Constitution
of 1974, 35 LA. L. REV. 1, 20 (1974).
230. W. Lee Hargrave, LSU PRESS,
http://lsupress.org/authors/detail/w-leehargrave/ (last visited Oct. 25, 2015).
231. Hargrave, supra note 228, at 21.
by sufficient societal interests to be considered reasonable.”232 “[T]he purpose
of the convention in expanding the individual’s protections in this area beyond
the existing law” guides this inquiry.233 The congressional debates
surrounding Article 1, Section 5 at its enactment further support “a desire to
go far beyond federal standards and to prevent the use of evidence obtained
by private persons in violation of the guarantees of the section.”234 The
purposeful enlargement of the exclusionary rule further supports the idea that
the framers of Article 1, Section 5 intended to provide expansive privacy
Individuals do not buy cell phones to use as tracking devices, nor do they
reasonably expect that the government will use their cell phones in such a
manner.236 Rather, cell phone users expect the freedom to move about in
relative anonymity without the government keeping an individualized
turnby-turn itinerary of their whereabouts.237 To safeguard privacy interests in the
sum of an individual’s movements, Louisiana courts should adopt an
expansive interpretation of Article 1, Section 5 of the Louisiana Constitution.
B. A Legislative Response
The Louisiana legislature should be proactive in creating laws that protect
Louisiana citizens’ privacy interests in CSLI. As Justice Alito suggests in his
concurrence in Jones, the best solution to privacy concerns involving dramatic
technological change is legislative.238 A legislative body is “well situated to
gauge changing public attitudes, to draw detailed lines, and to balance privacy
and safety in a comprehensive way.”239 The Louisiana legislature is well
suited to take action because the legislature is the governmental body most
connected to Louisiana citizens. The Louisiana legislature can communicate
directly with its constituents, seek input regarding public opinion of CSLI
tracking, and then incorporate these views into its actions. If public opinion
changes or CSLI technology advances further, the Louisiana legislature can
respond quickly by conducting hearings and investigations and drafting new
234. Id. at 22.
235. Hargrave, supra note 228, at 23–24.
236. State v. Earls, 70 A.3d 630, 632
237. United States v. Graham, 796 F.3d 332, 348 (4th Cir. 2015).
238. United States v. Jones, 132 S. Ct. 945, 964 (2012) (Alito, J., concurring).
240. Wackman, supra note 11, at 317.
Louisiana needs a comprehensive statutory scheme to carve out specific
exceptions to the warrant requirement and establish a clear suppression
remedy. The lack of an adequate suppression remedy under Louisiana law or
the SCA is problematic. Currently, if law enforcement collects CSLI under a
flawed, conclusory, or false court order, no mechanism is in place to prevent
this evidence from being used to prosecute a defendant.241 A specific, clear
suppression remedy, similar to that set forth in Montana’s law, would
discourage the prosecutor’s use of tainted CSLI evidence.
A clear, straightforward statute with easily administrable standards and
clear guidelines also benefits law enforcement because in the midst of
highstakes investigations, an easily understandable statute is likely to deter
mistakes or abuse by law enforcement.242 The benefit of placing the decisional
authority in a neutral, detached magistrate would also alleviate concerns about
police abuse of CSLI practices. A detached magistrate’s scrutiny is a more
reliable safeguard than the hurried judgment of a law enforcement officer
“engaged in the often competitive enterprise of fettering out crime.”243
Moreover, such legislation would be consistent with the expansive
constitutional interpretation of Article 1, Section 5. Law enforcement, as well
as society in general, has a strong interest in the prompt apprehension of
suspects,244 especially in a way that responsibly allocates scarce investigative
resources.245 Citizens have a competing interest, however, in being free from
intrusive CSLI investigative techniques that can reveal their private
information when law enforcement’s suspicion of their involvement in
criminal activity fails to meet probable cause.246 Cell phone users are common
today, but individuals generally do not purchase cell phones believing that
doing so automatically provides law enforcement with ample opportunity to
compile a comprehensive record of their personal habits.247 Conditioning the
use of a cell phone, which has become a necessity to many Americans, on
individuals’ willingness to permit the government to track their movements
without probable cause is also unreasonable.248
Absent an exception to the warrant requirement, requiring law
enforcement to obtain a warrant based on probable cause before obtaining
CSLI would likely burden law enforcement to a minimal degree. The benefits
of adopting this practice, however, such as an increase of public trust, would
241. Id. at 314–15.
242. Id. at 312.
243. Id. at 317–18.
244. United States v. Davis, 785 F.3d 498, 518 (
11th Cir. 2015
246. Freiwald, supra note 65, at 698.
247. Wackman, supra note 11, at 311–12.
248. See Curtis, supra note 12, at 89.
outweigh the slight inconvenience the warrant requirement may impose on
law enforcement.249 Therefore, a comprehensive statutory scheme requiring a
warrant based on a showing of probable cause and other attributes would
effectively balance Louisiana citizens’ privacy rights, public safety, and
Cellular technology has advanced to a level that allows for CSLI tracking
with nearly the precision of a GPS. As cell service providers continue
competing to provide the most reliable and capable cellular networks for their
subscribers, CSLI will continue to advance. CSLI will become more precise
and thus more valuable to prosecutors and, more importantly, more
convincing for juries. The prosecutorial value of CSLI underscores the
importance of implementing warrant requirements, which will insulate CSLI
evidence from police abuse. High-stakes criminal investigations in which
investigators and prosecutors who use CSLI are under significant pressure to
close cases are precisely the circumstances in which judicial oversight and
legislative clarity are most needed.251 Current federal and Louisiana law
governing CSLI are inadequate to confront this reality.
In today’s world, the wish to keep their movements private leaves
Louisiana citizens who desire and need to stay connected and informed with
no option other than to forego cellular technology altogether.252 Louisiana
courts’ expansive interpretation of the constitution to provide for additional
CSLI privacy protections is imperative. Equally important is the Louisiana
legislature’s creation of a comprehensive statutory scheme governing the
specifics of CSLI, from the burden of proof required to the consequences
resulting from failure to comply with that burden. This constitutional and
statutory probable cause solution will protect the privacy rights of Louisiana
citizens and provide clear guidelines to law enforcement without hindering its
ability to investigate and prosecute violations of the law effectively.
7. Always Connected , supra note 1.
8. ECPA Reform , supra note 6 , at 18-19.
9. Scott A. Fraser , Making Sense of New Technologies and Old Law: A New Proposal for Historical Cell-Site Location Jurisprudence, 52 SANTA CLARA L . REV. 571 , 578 ( 2012 ).
10. Cell Phone Location Tracking Public Records Request , ACLU, https://www.aclu.org/cases/cell -phone-location-tracking-public-records-request [https://perma .cc/2U54-JN6D] (last updated Mar . 25 , 2013 ).
11. See Nathaniel Wackman, Historical Cellular Location Information and the Fourth Amendment , 2015 U. ILL. L. REV . 263 , 269 ( 2015 ).
12. R. Craig Curtis, Michael C. Gizzi & Michael J. Kittleson , Using Technology the Founders Never Dreamed of: Cell Phones as Tracking Devices and the Fourth Amendment, 4 U. DENV . CRIM. L. REV. 61 , 75 ( 2014 ).
13. Patrick E. Corbett, The Fourth Amendment and Cell Site Location Information: What Should We Do While We Wait for the Supremes?, 8 FED . CTS. L. REV. 215 , 217 ( 2015 ). According to the United States Department of Justice, Sprint keeps location tracking records for 18-24 months, and AT& T has stored cell tower records “since July 2008 , ” suggesting they are stored indefinitely . Cell Phone Location Tracking Public Records Request, supra note 10.
14. Curtis , supra note 12, at 62-63.
15. Catherine Crump , Are the Police Tracking Your Calls? , CNN (May 22 , 2012 3:23 PM), http://www.cnn.com/ 2012 /05/22/opinion/crump-cellphoneprivacy [https://perma.cc/AER8-S36Z].
19. See United States v. Graham , 796 F.3d 332 , 343 n. 1 ( 4th Cir . 2015 ) (explaining how smartphones communicate with the network more frequently than traditional cell phones).
20. See , e.g., Graham , 796 F.3d at 332; see also State v. Marinello 49 So. 3d 488 (La. Ct. App . 2010 ).
21. See , e.g., Undisclosed: The State vs . Adnan Syed: Ping, PARTNERS IN CRIME MEDIA (July 27 , 2015 ) (downloaded using iTunes).
22. Annual Wireless Industry Survey, CTIA, http://www.ctia.org/your-wirelesslife/ how-wireless-works/annual-wireless-industry-survey [https://perma .cc/7HPT-B YB6] (last updated May 2016 ).
23. See id.
24. See Electronic Communications Privacy Act Reform: Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H . Comm. on Judiciary, 111th Cong . 40 ( 2010 ) (statement of Prof . Orin Kerr), http://judiciary.house.gov/_files/hear ings/printers/111th/ 111 -98_ 56271 .PDF [https://perma.cc/AR46-7MY8 ]; Graham, 796 F.3d at 343; ECPA Reform, supra note 6 , at 20.
25. Graham , 796 F.3d at 343; ECPA Reform, supra note 6 , at 20.
26. Graham , 796 F.3d at 343 n.1.
27. Id .
28. Aaron Smith , U.S. Smartphone Use in 2015, PEW RES . CTR. (April 1 , 2015 ) http://www.pewinternet.org/ 2015 /04/01/us-smartphone - use-in-2015/ [https://perma.cc/NVE4-B49R].
29. ECPA Reform, supra note 6 , at 20.
30. See Fraser, supra note 9 , at 578.
31. See ECPA Reform, supra note 6 , at 20.
32. Fraser , supra note 9, at 578.
33. ECPA Reform, supra note 6 , at 13.
34. Kevin McLaughlin , The Fourth Amendment and Cell Phone Location Tracking: Where are We?, 29 HASTINGS COMM . & ENT L.J . 421 , 426 ( 2007 ).
35. ECPA Reform, supra note 6 , at 20; Undisclosed, supra note 21.
36. ECPA Reform, supra note 6 , at 14.
37. Reforming the Electronic Communications Privacy Act: Hearing Before the S . Comm. on the Judiciary, 114th Cong . 2 ( 2015 ) (Statement of Elana Tyrangiel, Principal Deputy Assistant Att'y Gen .), http://www.judiciary.senate.gov/imo/media /doc/09-16- 15%20Tyrangiel% 20Testimony .pdf [https://perma.cc/3EPC-4HRL] [hereinafter Reforming the ECPA] . Some of the business purposes that CSLI serves include establishing a communications channel, routing a communication to its intended destination, and billing customers for communications services . Id.
38. Mark Hansen , Prosecutors' Use of Mobile Phone Tracking is 'Junk Science,' Critics Say, AM. B. ASSOC. J. (June 1 , 2013 , 8 :50 AM), http://www. abajournal.com/magazine/article/prosecutors_use_of_mobile_phone_tracking_ is_junk_science_critics_say/ [https://perma.cc/7EXQ-KD42]. .
39. Fraser , supra note 9, at 579.
40. See id. at 580; see also ECPA Reform, supra note 6 , at 27-28.
41. According to the United States Department of Justice, Sprint keeps location tracking records for 18 to 24 months, and AT& T has stored cell tower records “since July 2008 , ” which suggests that they are stored indefinitely . Cell Phone Location Tracking Public Records Request, supra note 10.
42. ECPA Reform, supra note 6 , at 27- 28 . Maintaining high resolution CSLI about each customer is a cost efficient way for cell service providers to collect highly valuable information for network management, marketing, and developing new services . Id.
43. Id .
44. Id . at 19. The number of cell sites in the United States has increased from 162,986 in December 2003 to 298 ,055 in December 2014. Annual Wireless Industry Survey , supra note 22.
45. ECPA Reform, supra note 6 , at 25.
46. Wackman , supra note 11, at 271.
47. See id.
48. ECPA Reform, supra note 6 , at 15-16.
49. See id. at 29.
50. See Cell Phone Location Tracking Public Records Request , supra note 10.
51. Id . The investigation of the Boston Marathon bombing provides an example of this practice. Using processes outlined in the Electronic Communications Privacy Act, FBI agents requested all CSLI generated for calls and texts terminated at the bombsite around the time that the bombs were detonated . Reforming the ECPA, supra note 37 , at 3. These cell tower records later proved to be critical during the investigation to help identify the bombers and their associates . Id . Some of the cell tower records were used at trial to show the communications between the bombers at critical times . Id.
52. See Cell Phone Location Tracking Public Records Request , supra note 10.
53. Id .
54. ECPA Reform, supra note 6 , at 23; M. Wesley Clark , Cell Phones as Tracking Devices , 41 VAL. U. L. REV. 1413 , 1413 ( 2007 ). A Global Positioning System (“GPS”) processes signals broadcasted by satellites orbiting the earth to mathematically determine the location of the GPS device and permits continuous, precise tracking of an individual's movements. April A. Otterberg, GPS Tracking Technology: The Case for Revisiting Knotts and Shifting the Supreme Court's Theory of the Public Space Under the Fourth Amendment , 46 B.C. L. REV . 661 , 662 , 665 ( 2005 ).
55. ECPA Reform, supra note 6 , at 30.
56. See Christopher Slobogin, Technologically-Assisted Physical Surveillance : The American Bar Association's Tentative Draft Standards, 10 HARV . J.L. & TECH . 383 , 408 ( 1997 ).
57. Id .
58. ECPA Reform, supra note 6 , at 30.
59. State v. Earls , 70 A.3d 630 , 643 (N.J . 2013 ) (“[C]ell-phone use has become an indispensable part of modern life. The hundreds of millions of wireless devices in use each day can often be found near their owners-at work, school, or home, and at events and gatherings of all types .”).
60. Graham , 796 F.3d at 348.
61. See id.
62. An example of law enforcement using CSLI to locate a suspect is the shooting of a police lieutenant in Baton Rouge, Louisiana. The Electronic Communications Privacy Act: Government Perspectives on Protecting Privacy in the Digital Age: Hearing Before the S . Comm. on the Judiciary, 112th Cong . 4 ( 2011 ) (statement of James A . Baker , Associate Deputy Att'y Gen.), http://www.judiciary.senate.gov/imo /media/doc/11-4-6%20Baker% 20Testimony .pdf [https://perma.cc/QP38-QS83]. While attempting to stop the suspect, the suspect shot the lieutenant in the neck and fled the scene . Id . After investigation, the suspect was identified and an arrest warrant was obtained for attempted first-degree murder of a police officer. Id. In their efforts to locate and arrest the suspect, the officers obtained court orders compelling the suspect's cell phone company to provide cell tower records. Id. The CSLI ultimately allowed officers to confirm the suspect's location . Id.
63. Fraser , supra note 9, at 582.
64. See Cell Phone Location Tracking Public Records Request , supra note 10 , at 2.
65. Susan Freiwald , Cell Phone Location Data and the Fourth Amendment: A Question of Law , Not Fact, 70 MD. L. REV. 681 , 725 ( 2011 ).
66. Wackman , supra note 11, at 267.
67. Thomas A. O'Malley , Using Historical Cell Site Analysis Evidence in Criminal Trials , 59 U.S. ATTYS' BULL. 6 , 16 ( 2011 ), http://www.justice.gov/sites /default/files/usao/legacy/2011/11/30/usab5906.pdf [https://perma.cc/8P2K-SS2V].
68. Freiwald , supra note 65, at 725-26.
69. See generally Undisclosed, supra note 21.
70. Justin Fenton , Adnan Syed's Defense Attorney Says He Has New Evidence to Overturn Conviction , BALTIMORE SUN (Aug. 24 , 2015 , 7 :27 PM), http://www .baltimoresun.com/news/maryland/baltimore-city/ bs-md-ci-syed-cell-phone-motion20150824-story .html [https://perma.cc/B4XF-H725].
71. Id .; see also Undisclosed, supra note 21.
72. Fenton , supra note 70.
73. Id .
74. Undisclosed , supra note 21.
75. Id . For further discussion of the cell phone data controversy that the podcasts Undisclosed: The State vs. Adnan Syed and season one of Serial reveal, see The Legal Ease: Ep. 6 Hon James Dennis: Personal History Part 2 , LA. L. REV. ( Feb . 21, 2016 ) (downloaded using iTunes).
76. Electronic Communications Privacy Act (ECPA), EPIC .ORG, https://epic.org /privacy/ecpa/ [https://perma.cc/66UJ-9EK5] (last visited Sept . 30 , 2015 ).
77. Id .
78. CSLI is generally considered to be non-content information because it involves the numbers used to make calls, the duration of calls, and which cell towers were used to make those calls, rather than the actual words communicated through the call . Corbett, supra note 13 , at 218. Therefore, content-based electronic communications are outside the scope of this article .
79. 18 U.S.C. §§ 3121 - 3127 ( 2012 ).
80. 18 U.S.C. §§ 2701 - 2712 ( 2012 ).
81. Reforming the ECPA , supra note 37 , at 4.
82. Id .
83. 18 U.S.C. § 2703 ( 2012 ).
84. Corbett , supra note 13.
85. 18 U.S.C. § 2703 (c) ( 2012 ).
86. FED. R. CRIM . P. 41 ( d ). The warrant requirements in the Federal Rules of Criminal Procedure are consistent with the Fourth Amendment . See U.S. CONST. amend. IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized .
87. 18 U.S.C. § 2703 (d) ( 2012 ).
88. United States v. Graham , 796 F.3d at 343 -44 (quoting In Re Application of U.S. for an Order Pursuant to 18 U .S.C. Section 2703 ( d ), 707 F.3d 283 , 287 ( 4th Cir . 2013 )).
89. Id . at 344.
90. See FED. R. CRIM . P. 41 (c); see also In re Application of the U.S. for an Order Authorizing the Release of Prospective Cell Site Info ., 407 F. Supp . 2d 134 , 135 (D.D .C. 2006 ) (noting the difference in the standards because probable cause requires a finding that the information sought is itself evidence of a crime rather than relevant and material to the investigation) .
91. 18 U.S.C. § 2703 (d) ( 2012 ).
92. Freiwald , supra note 65, at 697-98.
93. Id .
94. Graham , 796 F.3d at 343 -44 (citations omitted) (quoting In Re Application of U.S. for an Order Pursuant to 18 U .S.C. Section 2703 ( d ), 707 F.3d 283 , 287 ( 4th Cir . 2013 )).
95. Freiwald , supra note 65, at 697-98.
96. Corbett , supra note 13, at 218.
97. Id . at 217.
98. 18 U.S.C. § 3122 ( b)(2) ( 2012 ).
99. See , e.g., United States v . Davis , 785 F.3d 498 ( 11th Cir . 2015 ), cert. denied, 2015 WL 4600402 (U .S. 2015 ); see also Graham, 796 F.3d at 332.
100. Fourth Amendment - Warrantless Searches - New Jersey Supreme Court Holds That State Constitution Requires Police to Obtain Warrant Before Accessing Cell-Site Location Information . - State v. Earls , 70 A. 3d 630 (N.J . 2013 ), 127 HARV. L. REV. 2164 , 2164 ( 2014 ).
101. Id .
102. Wackman , supra note 11, at 293.
103. Id . at 318. See generally United States v . Jones , 132 S. Ct . 945 ( 2012 ); Smith v . Maryland , 442 U.S. 735 ( 1979 ); Katz v . United States , 389 U.S. 347 ( 1967 ) ; United States v . Knotts , 460 U.S. 276 ( 1983 ) ; United States v . Karo , 468 U.S. 705 ( 1984 ); Kyllo v . United States , 533 U.S. 27 ( 2001 ). See also Wackmam, supra note 11 , at 318.
104. See , e.g., In re Application of the United States for Historical Cell Site Data, 724 F.3d 600 , 611 - 12 ( 5th Cir . 2013 ) (quoting Jones, 132 S. Ct . at 961 (Alito, J., concurring in the judgment)) (explaining that the third party doctrine applies to CSLI because the government asks cell service providers to turn over records that the provider has already created using CSLI collected); see also United States v . Davis , 785 F.3d 498 , 512 ( 11th Cir . 2015 ), cert. denied, 2015 WL 4600402 (U .S. 2015 ) (“The longstanding third-party doctrine plainly controls the disposition of this case .”).
105. See , e.g., United States v . Graham , 796 F.3d 332 , 346 - 47 ( comparing examination of historical CSLI to the GPS monitoring in Karo and Kyllo) .
106. See Katz, 389 U.S. 347 ( 1967 ).
107. Id . at 353.
108. Id . at 361 (Harlan, J., concurring).
109. Id .
110. See , e.g., United States v . Davis , 785 F.3d 498 , 511 ( 11th Cir . 2015 ), cert. denied, 2015 WL 4600402 (U .S. 2015 ) (analyzing Davis's privacy interest in his CSLI under the Katz reasonable expectation of privacy test); see also Graham, 796 F.3d at 345 (holding that cell phone users have both a subjective and objective reasonable expectation of privacy in CSLI) .
111. 442 U.S. 735 ( 1979 ).
112. Compare In re Application of the United States for Historical Cell Site Data, 724 F .3d 600 , 611 - 12 ( 5th Cir . 2013 ) (quoting United States v . Jones , 132 S. Ct . 945 , 961 ( 2012 ) (Alito, J., concurring in the judgment)) (explaining that the third-party doctrine applies to CSLI because the government is asking cell service providers to produce records the provider has already created), and Davis , 785 F. 3d at 512 (“The longstanding third-party doctrine plainly controls the disposition of this case . ”) , with Graham , 796 F. 3d at 353 (“It is clear to us . . . that cell phone users do not voluntarily convey their CSLI to their service providers. The third-party doctrine . . . is therefore inapplicable here.”).
113. Smith , 442 U.S. at 737.
114. Id . at 745-46.
115. Id .
116. Id . at 743-44.
117. 132 S. Ct . 945 , 949 ( 2012 ).
146. Id . at 614.
147. Id . at 613.
148. Id .
149. See id. at 613-14.
150. See FED. TRADE COMM'N , MOBILE PRIVACY DISCLOSURES: BUILDING TRUST THROUGH TRANSPARENCY: A FEDERAL TRADE COMMISSION STAFF REPORT ( 2013 ), https://www.ftc.gov/sites/default/files/documents/reports/mobile-privacy -dis closures-building-trust-through-transparency-federal-trade-commission-staff-report /130201mobileprivacyreport .pdf [https://perma.cc/CJD9-M3SN].
151. Id . at 10.
152. Id .
153. Id .; Aleecia M. McDonald & Lorrie Faith Cranor , The Cost of Reading Privacy Policies , 4 I/S: J. L. & POL'Y INFO. SOC 'Y 543 , 544 ( 2008 ).
154. See Megan L. McKeown , Whose Line Is It Anyway? Probable Cause and Historical Cell Site Data, 90 NOTRE DAME L . REV. 2039 , 2050 - 51 ( 2015 ).
167. Andy Greenberg , Court's Reversal Leaves Phones Open to Warrantless Tracking , WIRED (May 5 , 2015 , 5 :37 PM), http://www.wired.com/ 2015 /05/courtsreversal-leaves -phones-open-warrantless-tracking/ [https://perma.cc/E3E4-PRDG].
168. Id .
169. United States v. Graham , 796 F.3d 332 , 338 ( 4th Cir . 2015 ).
170. Id . at 344.
171. Id . at 350.
172. Id . at 338.
173. Id . at 345.
174. Id . at 346- 47 . Amendment in recognizing a reasonable expectation of privacy in CSLI. 152 So. 3d at 510-11.
196. Earls , 70 A.3d at 644; Wyatt, 2012 WL 4815307 at *2.
197. Id .
198. Earls , 70 A.3d at 644; Wyatt, 2012 WL 4815307 at *7.
199. Earls , 70 A.3d at 642; Wyatt, 2012 WL 4815307 at *2.
200. Earls , 70 A.3d at 643; Wyatt, 2012 WL 4815307 at *6.
201. Earls , 70 A.3d at 643; Wyatt, 2012 WL 4815307 at *6.
202. Earls , 70 A.3d at 644; Wyatt. 2012 WL 4815307 at *2 . Article I , Paragraph 7 of the New Jersey Constitution states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause .” N.J. CONST. art. I, § 7 . Article XIV of the Massachusetts Declaration of Rights provides: “Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation.” MASS. CONST. art . XIV.
203. Wackman , supra note 11, at 316.
204. 2013 Mont. Laws Ch. 394 (H.B . 603 ) (codified at MONT . CODE ANN. 46- 5-110 (West 2016 )).
205. Id .
206. Id .
207. Id .
208. Hanni Fakhoury , A National Consensus: Cell Phone Location Records Are Private , ELECTRONIC FRONTIER FOUND. (July 29 , 2014 ), https://www.eff.org/deep links/ 2014 /07/constitutionally-important -consensus-location-privacy [https://perma .cc /D5R4-GLHM]. Colorado, Maine, and Minnesota have passed statutes governing historical CSLI . Id. Indiana, Virginia, and Wisconsin enacted statutes governing realtime CSLI . Id.
209. Somini Sengupta , With Montana's Lead, States May Demand Warrants for Cellphone Data , N.Y. TIMES ( July 2 , 2013 , 5 :24 PM), http://bits.blogs.ny times.com/ 2013 /07/02/with -montanas-lead-states-may-demand-warrants-for-cell phone-data/? _r=0 [https://perma.cc/H6HF-5U6Q].
210. See Fakhoury, supra note 208.
249. Wackman , supra note 11, at 318.
250. See Reforming the ECPA , supra note 37 , at 1.
251. See discussion supra Part I.B .
252. See Corbett, supra note 13 , at 227.
J.D. /D.C.L., 2017 , Paul M. Hebert Law Center, Louisiana State University, This Comment is dedicated to my family for always supporting and encouraging me . Special thanks to Professor P. Raymond Lamonica for his guidance throughout the writing process and to everyone on the Louisiana Law Review for their thoughtful edits .