Cell Site Records Are Like Stamps and Envelopes, Says 6th Cir.

The Sixth Circuit employed a rather fascinating analogy comparing historical cell-site records of caller data to mailing addresses, thus raising questions about reasonable expectations of privacy. The result? The Stored Communications Act within the Sixth Circuit does not equal a mega-search.

Lawyers should compare this ruling with the Houston Family case ruling, also decided by the Sixth Circuit. A quick review of the court's language shows a remarkable consistency in theme.

Stored Communications Act

The major legal issue at bar before the circuit was the constitutionality of the federal Stored Communications Act which has been used by the federal government to track and locate a person's phone or other personal device, thus revealing the owner's likely location. under the SCA, the statute allows the government to access records of these trackings without having to go through the trouble of obtaining a search warrant first.

"Facilitate Personal Communications"

Opinion and positions have already begun to form between the different Federal Circuit courts as to the constitutionality of the SCA. Both the Eleventh and Fifth Circuits have ruled that the SCA does not constitute a search in violation of a person's reasonable expectation of privacy. The legal conclusion? No search warrant needed.

It appears that the Sixth Circuit will be the next federal appellate court to take this view. Judge Raymond Kethledge's wonderfully written opinion in United States v. Carpenter cites the "content/non-content" distinction. Courts, he said, have long recognized a distinction between the content of a communication and the means to facilitating that communication. In the early days of mail, the "outward form and weight" of parcels were not constitutionally protected because they did not enjoy a reasonable expectation of privacy. They were free for the public to see, and helped (and still do) facilitate personal communication.

Email: Mail of the 21st Century

The court provided case law to justify the evolution of doctrine as applied to telephone calls and then eventually to email and other modern day communications. The Fourth Amendment, it said, protects today's iteration of mail: Email. Metadata is the data routinely collected by businesses and thus becomes unprotected because it is not part of the content of the communication but merely helps facilitate communication. Thus, applying this logic to cell-site data in generally, phone numbers, IP addresses all help to facilitate personal communications and are not part of the communications themselves. So, the SCA does not constitute a search and a warrant is wholly unnecessary.

Kethledge eventually admonished those who seek to second guess the structure of the SCA. Circumstances "favor leaving undisturbed the Congressional judgment here."

Related Resources:

• Government's Warrantless GPS Tracking Violates 4th Amendment (FindLaw's U.S. Third Circuit Blog)
• The 4th Amendment: Still Alive and Kicking in the 8th (FindLaw's U.S. Eighth Circuit Blog)
• Monitoring Bracelet Counts as 4th Amend Search, Court Holds (FindLaw's Supreme Court of U.S. Blog)
• 4th Cir. to Rehear Cell-Site Surveillance Tower Case (FindLaw's U.S. Fourth Circuit Blog)