No Privacy in Cell Phone Ping Data
There is no reasonable expectation of privacy in data given off by a pay-as-you-go cell phone, the Sixth Circuit found.
At issue in the case was geolocational information obtained by Drug Enforcement Administration officers who continuously “pinged” the pay-as-you-go cell phone of a suspect and his son who were driving from Arizona to Texas. Once the suspect parked the motorhome for the night, DEA officers used drug-sniffing dogs to indicate that narcotics were inside the vehicle, which enabled the officers to enter the motorhome. Inside the officers found 61 bales of marijuana, two cellular phones and two semi-automatic handguns. The driver was charged with conspiracy to distribute and possess with intent to distribute marijuana and money laundering.
The cell phone number was obtained by intercepting phone calls from two subscription phones subscribed in the name of a co-conspirator, one of which was used by defendant. The officers had obtained a court order for the wiretap. The DEA then obtained another court order authorizing the phone company to release subscriber information, cell site information, GPS real-time location, and “ping” data from the pay-as-you-go cell phone, which had been obtained using a fictitious name.
By pinging the phone, the DEA was able to continuously track the suspect. At no point did the agents follow the vehicle or conduct any type of visual surveillance.
The defendant argued that by pinging for GPS data the agents conducted a warrantless search in violation of the Fourth Amendment. The appellate court found no Fourth Amendment violation “because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cell phone. If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal. The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools. Otherwise, dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent,” the court wrote. In a footnote, the appellate court stated that even “an innocent actor would similarly lack a reasonable expectation of privacy in the inherent external locatability of a tool that he or she bought.”
The appellate court distinguished the case from the recent Supreme Court case of United States v. Jones, where the court found the government needed a warrant to track a vehicle for 24 hours a day for 28 days with a GPS device placed on the vehicle. “No such physical intrusion occurred in Skinner’s case. Skinner himself obtained the cell phone for the purpose of communication, and that phone included the GPS technology used to track the phone’s whereabouts,” the appellate court stated. Moreover, the appellate court said, the tracking here was for only three days and is “no more of a comprehensively invasive search than if instead the car was identified in Arizona and then tracked visually and the search handed off from one local authority to another as the vehicles progressed. That the officers were able to use less expensive and more efficient means to track the vehicles is only to their credit.”
In a concurring opinion, one justice said he would find that there was a “legitimate expectation of privacy in the GPS data emitted from any cell phone” and that the principle should apply to both criminals and law-abiding citizens. However, the justice said he would affirm the convictions because, even though the DEA should have obtained a warrant for the tracking, the agents acted in “good faith” based upon a court order, which he found was a mere procedural error.
United States of America v. Skinner, 6th Cir. No. 09-6497, filed August 14, 2012.