UPDATED: Sixth Circuit Cell Tracking Case Travels Down the Wrong Road

Today the Sixth Circuit ruled in United States v. Skinner that police do not need a warrant to obtain GPS location data for mobile phones.  Investigators obtained an unspecified court order, but not a warrant, to obtain subscriber information, cell site information, GPS real-time location, and “ping” data regarding two different prepaid cell phone numbers.  

The  Court does not explain the technology used for tracking the defendant. Traditionally, pinging the phone requires the provider to send signals to the handset causing it to respond with signals to be received by its nearest tower.  This happens in real time.  What this means is that the ping data is not automatically sent by the phone but created by the provider at law enforcement's request.   

At some point, GPS data was used to locate the phone in Abeline, Texas.  Again, the Court does not explain the way that the GPS data was generated or collected.  Usually, the handset will not broadcast its location to a server unless it is using a location based service, or "checking in".  The opinion says that the defendant did not know the handset was GPS capable, so again I assume that the provider triggered the GPS functionality. 

The majority puts much stock in the idea that the location data was "given off" by the phone, but that's almost certainly inaccurate given what little we know about the technology used here.  Rather, the phone was converted into a tracking device when the government compelled the provider to send it certain signals and commands.  

Certainly a serious understanding of tracking technology should have at least given us a less offhand opinion and sloppy reasoning.  The Court blunders into all sorts of confusing and non-obvious conclusions including that GPS is like the colors of paint on a getaway car, or that if officers _could_ have followed the car had they known what it looked like and where it was, then they may use technology to remotely track it.  

Perhaps most egregious is the Court's failure to understand that the court orders the agents got for pinging and GPS tracking the phone were almost certainly statutorily insufficient.  To the contrary, the Court blithely points to the court orders as another reason that the tracking was lawful.  We don't know what kind of order the government got, the opinion never bothers to tell us.  Pinging a phone in real time is governed by the pen register/trap and trace statute.  18 USC 3121, 3127.  To get a trap and trace order, government generally needs an order under section 3123. However, CALEA prohibits use of the pen register authorization for obtaining subscriber location information.  47 USC 1002(a)(2)(B).  So, the FBI should have gotten a warrant under Rule 41 for this information, but clearly did not.  Talk about having a reasonable expection against warrantless tracking!  Its actually what the law requires.

UPDATE: Jake Sommer at ZwillGen did some creative research and got a hold of a copy of the court order signed by the magistrate in the Skinner case. The orders show that the court authorized pinging and GPS tracking on a real time basis under 18 USC 2703(c)(1)(B) and 2703(d).  "Whoa", you are saying to yourselves.  "You mean, the court authorized real time tracking based on a provision of the Stored Communications Act, without even a reference to the Pen Register statute or CALEA?  That can't be right." Well, its not right, but that's what the Court did. 

Does DOJ have any policies for field offices with regard to location tracking?  In my District, the Northern District of California, the United States Attorneys assure us that they get a warrant for multiple tower location data.  In Skinner, law enforcement isn't even using the correct statute. How do we explain this disparity? 

This was an illegal search. But the statutory illegality means nothing for suppression of the evidence.  That requires a Fourth Amendment violation, and the Court found none.  Skinner cannot even sue, as §2703 says there is no cause of action against the mobile provider for providing information "in accordance with the terms of a court order, warrant, subpoena, statutory authorization, or certification under this chapter."  Also, §2707 provides for actual damages or $1000 but says the U.S. may not be sued, and anyone else has a good faith defense.  In sum, what we have here is illegal government conduct, rubber stamped by the Court, with no remedy for Skinner or any of the other people in the Sixth Circuit who have been or will be tracked unlawfully. 

Photo Credit: Scallop Holden