Twisted Tracking Law Precedent Badly Needs Straightening Out

On December 16, 2019 the Supreme Court denied cert in Ackies v. United States, the ‘precise location’ warrant case from the First Circuit. For reasons I outlined here and here, that appellate court decision was a train wreck of factual misconception and statutory misconstruction.

Of course, the Supreme Court does not sit to correct every misguided ruling by a lower court.  Ackies was the first appellate court to approve a PLI warrant under SCA 2703(c), so there is not yet a circuit split (although a majority of published district court decisions have held that a cell phone can be a tracking device within the meaning of the Tracking Device Statute).[1] It is also useful to recall that the Supreme Court had previously denied cert in one of the cases eventually overruled by Carpenter.[2]

It’s a safe bet that the Supreme Court will eventually be forced to address the real-time cellphone tracking question that it dodged in Carpenter. If for no other reason, this is so because real-time tracking of cell phones by law enforcement has become one of the most common investigative tools in law enforcement’s arsenal.

While the DOJ does not post aggregate numbers as it does for other modes of real-time surveillance like wiretaps and pen registers, court records from the federal district court in Houston (where I sat) starkly illustrate the trend:

During this recent 5-year period, the number of cellphone tracking warrants was more than half (52%) the number of search warrants for tangible property like homes, offices, autos, and mail packages.[3] In one of those years (FY 2016), the number of cellphone tracking warrants nearly equaled the number of standard search warrants – 204 to 214, a ratio of 95%.

Despite the numbers, one still might question the necessity of Supreme Court intervention here. After all, a PLI warrant issued under the SCA requires probable cause just like a Rule 41 tracking warrant. So what’s the big deal? Several things.

Territorial limits. As the Ackies case well illustrates, an SCA warrant dramatically widens the scope of law enforcement surveillance authority. A court sitting in Maine has no authority to issue a search warrant for a home in Hawaii, no matter how much probable cause there is. Nor could that court issue a tracking warrant for a vehicle driving the streets of Honolulu, even if the driver were a notorious drug lord. Yet (according to Ackies) that same court could issue an SCA warrant to track the movements of a cell phone user on Waikiki Beach.

Like it or not, this is a big departure from the usual territorial restrictions on a magistrate judge’s warrant authority.[4]  One could reasonably debate whether it might be good policy to carve out a special venue exception for tracking cell phones. The fact is that no such debate has occurred, whether in Congress or by the Rules Committee. Instead, courts are being asked to create such an exception based on tenuous inferences from a notoriously vague law piled atop a misunderstanding of key facts. The result is misinformed policy-making by judicial fiat.   

Extraterritoriality concerns. With the passage of the CLOUD Act in 2018, Congress extended the jurisdictional reach of the Stored Communications Act. Under new SCA 2713, a provider can be compelled to disclose communication content and subscriber information within its possession, custody, or control, “regardless of whether such communication, record, or other information is located within or outside of the United States.”

Under Ackies’ expansive view of SCA warrants, a U.S. court will now be able to authorize real-time cellphone tracking in foreign countries around the globe. By stark contrast, Rule 41 follows the normal presumption against extraterritorial application of U.S. law, and does not authorize searches and seizures on foreign soil.[5] This presumption is undergirded by important foreign relations concerns, especially the imperative of mutual respect for national sovereignty. The Supreme Court has paid special heed to these concerns in the past. For example, in 1990 the Court disapproved a proposed amendment to Rule 41 that would have authorized warrants to search property outside the United States.[6]

Of course, Congress has the power to override this presumption in particular circumstances, and the CLOUD Act did just that in a limited way—but only for content and subscriber information stored abroad yet within the control of a U.S. provider. Did the CLOUD Act Congress understand that it was permitting US law enforcement to track cellphones in foreign countries?  Nothing suggests that it did. At the time the law was passed in 2018, a majority of reported district court opinions had held cell phones to be Rule 41 tracking devices.[7] Nor had any appellate court held otherwise, save for the initial Wallace opinion withdrawn by the 5^th Circuit in August 2017.[8]

It is true that any SCA tracking warrant would still be subject to the usual jurisdictional hurdles--the court must have competent jurisdiction over the crime committed, and the provider must have sufficient contacts with the forum. As the swelling numbers of SCA tracking warrants demonstrate, these are not high hurdles.

Yet the potential impact on foreign relations is far from negligible. U.S. providers know, or can determine with regularity, the location of any subscriber device roaming abroad. Unwittingly, then, Ackies has effectively enabled a global surveillance system. The potentially dramatic consequences of this extraterritorial reach by U.S. law enforcement should reinforce the case for early Supreme Court review of the matter.

Notice and transparency.  Aside from extended territorial coverage, an SCA warrant allows law enforcement to avoid other bothersome Rule 41 procedures for a tracking warrant, particularly the required notice to the target.[9]

Under SCA 2703(c)(3), “a government entity receiving records or information under this subsection is not required to provide notice to a subscriber or customer.” The only party receiving notice of an SCA order or warrant is the provider, who is typically subject to a gag order precluding notice to customers that government has accessed their cell phone records and email accounts. SCA 2705(b). By contrast, Rule 41 requires that, within 10 days after use of a tracking device, law enforcement “must serve a copy of the warrant on the person who was tracked or whose property was tracked.” Rule 41(f)(2)(C). In addition, the officer executing the warrant must also “enter on it the exact date and time the device was installed and the period during which it was used,” and then the warrant must be returned to the issuing judge. Rule 41(f)(2)(A)-(B). None of these things are required by the SCA.

The lack of notice to the target is problematic for two reasons. First of all, it may be unconstitutional, now that the Supreme Court has ruled that cell site location data is protected by the Fourth Amendment.[10] A still-viable precedent out of the 9^th Circuit holds that a warrant for surreptitious search and seizure of intangibles is “constitutionally defective” if it “fail[s] to provide explicitly for notice within a reasonable, but short, time subsequent to the surreptitious entry.” United States v. Freitas, 800 F.2d 1451, 1456 (9^th Cir. 1986). According to that court:

[S]urreptitious searches and seizures of intangibles strike at the very heart of the interests protected by the Fourth Amendment. The mere thought of strangers walking through and visually examining the center of our privacy interest, our home, arouses our passion for freedom as does nothing else. That passion, the true source of the Fourth Amendment, demands that surreptitious entries be closely circumscribed.

It’s certainly possible that other circuits may not find their “passion for freedom” sufficiently aroused to overcome a textualist bias against reading a notice requirement into the Fourth Amendment.[11] Even so, the lack of notice is concerning on another, equally fundamental level –government transparency. Federal court orders and warrants under the Electronic Communications Privacy Act (which includes the SCA) make up the largest secret docket in our country.

Through a potent mix of indefinite sealing, nondisclosure (i.e. gagging), and delayed notice provisions, ECPA surveillance orders all but vanish into a legal void. It’s as if they were written in invisible ink—legible to the phone companies and Internet service providers who execute them, yet imperceptible to unsuspecting targets, the general public, and even other arms of government, most notably Congress and the appellate courts.[12]

The SCA is by far the least transparent of ECPA’s three titles. Wiretap orders issued under Title I require subsequent notice to the target, as well as detailed reports concerning each order; those reports are then aggregated and published by the Administrative Office. 18 U.S.C. 2519. Pen/trap orders under Title III do not require individualized notice, but DOJ is required by law to publish annual reports on the number of pen registers obtained. 18 U.S.C. 3126.  By contrast, there are no reporting requirements whatever for SCA warrants under Title II.

That means there is no official tab of how many times government has accessed our phone records and email accounts, or how often government covertly monitors our daily movements via the tracking device we all carry in our pockets. Based on my review of Houston docket records, those numbers are large indeed – for every wiretap order scrupulously reported to the AO, there are likely dozens of unreported SCA orders and warrants, many of which target multiple subscribers.

As many scholars have explained, government secrecy is antithetical to democratic accountability.[13]  The Supreme Court summed it up pretty well in Richmond Newspapers v. Virginia: “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”[14]

Even if the Supreme Court takes its time to correct the 1^st Circuit’s wrong turn, there is no reason other courts need to blindly follow Ackies over the cliff. By its own terms, the SCA allows warrants to be issued “using the procedures” of Rule 41. Thus, there is no reason why MJs confronted with a PLI warrant application could not apply the full panoply of Rule 41 procedures dealing with tracking warrants. A recent decision by a Utah magistrate judge decision takes exactly this approach.[15]

Next time: I’ll close this line of posts on Ackies with a final comment on the duty of candor in warrant applications.