THE
PERVASION
OF
CELL
PHONES
AND
THE
FOURTH
AMENDMENT:
A
RIGHT
TO PRIVACY
IN
LOCATIONAL
DATA
ZACHARY
R.
HOOVER*
The
question
we
confront
today
is
what
limits there
are
upon
this
power
of
technology
to
shrink
the
realm
of
guaranteed
privacy.'
Justice Antonin
Scalia,
U.S.
Supreme
Court
(2001)
I.
INTRODUCTION
That
question,
posed
by
the
late
Justice
Scalia seventeen years
ago,
continues to
cause turmoil
throughout
the
judicial
system.
The
judicial
system
has
frequently
grappled
with
identifying
an
appropriate
analysis
to
address technological advancements
in
an
attempt
to
establish
minimum
expectations
of
privacy.
2
These
advancements
in
technology
continually
threaten
the
right
to
privacy.
This
is
especially
prevalent
in
a
society
where
technology
has
become
an
appendage
to
our
persons.
The
leading
culprit
in
this
respect
is
the cellular phone.
The
cell
phone,
which
was
once
considered
an
auxiliary
item,
is
now
a
necessity
in
almost
every
aspect
of
daily
life.'
Consider
everywhere
you
Copyright
©
2018, Zachary R.
Hoover.
J.D.,
Capital
University Law
School,
Class
of
2018.
Kyllo
v.
United
States,
27,
34 (2001).
2
Orin
Kerr
has
attempted to establish several
different
models
on
how
the Court
should
address Fourth Amendment
protections.
Orin
S.
Kerr,
Four
Models
of
Fourth
Amendment
Protection,
60
STAN.
L.
REv.
503,
523
(2007).
'See
Planet
of
The
Phones,
ECONOMIST
(Feb.
28,
2015),
https://www.economist.com/
news/leaders/216451
80-smartphone-ubiquitous-addictive-and-transformative-planet-phones
[https://perma.cc/J574-XYKQ].
Cell
phone
ownership
of
adults
in
America,
as
of
January
2017,
was
95%.
Mobile
Fact
Sheet,
PEW
RES.
CENTER
(Feb.
5,
2018),
http://www.pewintemet.org/fact-sheet/mobile/
[https://perma.cc/6PE6-J3DK].
The
Court
recently
took judicial
notice
of
this
stating "more
than 90%
of
American
adults...
own
a
cell
phone."
Riley
v.
California,
2473,
2490
(2014).
The
Supreme
Court
also
recognized
the
pervasiveness
of
cell
phones:
"[M]odern
cell
phones,
which
are
now
such
a
pervasive and
insistent
part
of
daily
life
that
the
proverbial
visitor
from
Mars
might
conclude
they
were
an
important feature
of
human
anatomy."
Id.
at
2484.
CAPITAL
UNIVERSITY LAW
REVIEW
have
traveled
over
the
past
year, month,
week,
day,
and
hour.
How
often
during
that
time
can
you
recall
not
having
your
cell
phone
on
your
person
or
within
arm's
reach?
Most
likely,
your
answer
will
be
"almost
never"
or
"very
rarely."
4
Law
enforcement
agencies
are
also
aware
of
the
omnipresence
of
cell
phones
and
their
locational capabilities.'
Historical
locational
data
generated
by
cell
phones
have
become
a
crucial
investigatory
tool
for
law enforcement, essentially
permitting
them
to
locate
any
person,
anytime,
anywhere.
6
A
goal
of
the
Fourth
Amendment
is
to
prevent
"permeating
police
surveillance."
7
However,
with
the
pervasiveness
of
cell
phones
and the
massive
amount
of
locational
data
they
produce,
is
the
Fourth
Amendment
achieving
this
goal,
or
has
the
right
to
privacy become
a
hollow tenet?
The
article
addresses
the
Fourth
Amendment
issue
of
locational data
generated
by
cell
phones
and
whether
a
minimum
expectation
of
privacy
exists.
More
specifically, whether
the
locational
information a
cell
phone
transmits
to
a
service
provider
is
within the
scope
of
Fourth
Amendment
privacy
protections.
Part
I
of
this
Comment
addresses
an
inherent
issue
in
current
Fourth
Amendment
jurisprudence--the
reasonableness
approach
utilized
in
the
Katz
test-and
whether
a
normative
approach
to privacy
is
better
suited to
address the
privacy concerns
presented by
locational
data.
Part
II
addresses current
methods
available to
track
the
location
and
movement
of
a
cell
phone,
specifically focusing
on
cell-site
location
information.
A
brief
background
of
the
basic
locational
capability
of
a
cell
phone
is
provided,
in
addition
to the
accuracy
of
this
locational
data.
The
potential
for
cell
phones to
passively
connect
to
cell
towers
is introduced,
and
analyzed
in
the
context
of
Fourth
Amendment
jurisprudence
in
Part
IV.
Part
II
concludes
with
a
discussion
on
the
importance
of
cell-site
locational
data
and
how
it aids
law
enforcement
in
their
investigations
of
criminal
activity.
Part
III
presents
a
discussion
of
the
Fourth
Amendment, the
protection
it provides,
and
how
the
Katz
test
is
used
to
determine
if
a
right
to
privacy
4
A
study
in
2015
indicates
that 3%
of
cell
phone
users rarely
have
their
cell phones
with
them,
and
only 1%
say
they
never do.
Lee
Rainie and Kathryn
Zickuhr,
Americans'
Views
on
Mobile
Etiquette,
PEW
RES.
CENTER
(Aug.
26,
2015),
http://www.pewintemet.org/
2015/08/26/chapter-I -always-on-connectivity/_[https://permacc/YM38-36G2].
'
See
infra
Section
II.A.3.
6
See
infra
Section
II.A.3.
7
United States
v.
Di
Re,
581,
595
(1948).
'
Katz
v.
United
States,
347,
361
(1967)
(Harlan,
J.,
concurring).
740
[46:739
PRIVACY
AND
LOCATIONAL
DATA
exists
in
a
given
scenario. Common
issues
in
the
Katz
test
arise
under the
"reasonableness"
and
"knowledge" components
of
the
test,
which
will
be
addressed while
also
considering
an
alternative
approach to determine
privacy
protections.
Fourth Amendment
cases
involving
the
advancements
in
technology
are
then
analyzed to consider
whether the
Court
has
established
a
minimum
expectation
of
privacy
that
cannot
be
infringed
upon
by
technology.
The
opinions
of
several
Supreme
Court
Justices
are
also highlighted
to
determine
if
the
jurisprudence established
by
the
Court
should be
reconsidered
in
light
of
the
threats
to
privacy presented
by
technological advancements
in
locational
data.
Part
IV
addresses the
issues
presented
by
cell
phone
locational data
and
the
various
approaches
taken
by
the
courts
to
address locational
data
and
the
right
to privacy.
This
Part
highlights
the
disparity
in
analyses
between
the
circuit
and
district
courts
that
have
specifically addressed
cell
phone
locational
data
and
the right to
privacy.
These
analyses
consist
of
the
applicability
of
the third-party
doctrine
and
the
need
for
doctrinal
reformation; the
aggregation
of
massive
amounts
of
locational
data
to
reveal
intimate details
of
a
person's
life;
and
Congress's
authority
to
balance privacy
concerns
and
establish
privacy
protections.
II.
CELL
PHONE
TRACKING
METHODS
Cell
phones
can
be
tracked
by several
different
methods
whenever
they
are
turned
on.
9
The
most
well-known
method
is
through
handset-based
technologies,
such
as
a
Global Positioning
System
("GPS").'
°
An
emerging
technology
for
real
time tracking
is
International Mobile
Subscriber
Identity ("IMSI"). 1 The
most
abundant
technology,
and
9
Locational
Privacy,
ELECTRONIC
PRIVACY
INFO.
CENTER,
https://epic.org/privacy/
locationprivacy/
[https://perma.cc/36TF-8P32].
10
GPS
or
Global
Positioning
System
uses a
constellation
of
global
positioning
satellites
in
order
to
calculate
the
longitude
and
latitude
of
a
cell
phone,
typically
within
ten
meters
of
its
location.
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 Comm.
On
the
Judiciary,
111
th
Cong.
21
(2010)
(testimony
of
Matt
Blaze,
Associate
Professor,
Univ.
of
Pa.)
[hereinafter
Blaze
Testimony].
H
"'IMSI
Catcher,'
'StingRay,' or
'Triggerfish,'
..
.
mimic
a
wireless
carrier's
network
tower
and
can
send and receive
all
the same
signals
going
to the
cellular
tower
....
IMSI
catchers
can
determine
a
specific
cell
phones
[sic]
location
by
measuring
the
signal
strength
of
the
cell
phone
from several
locations
and
utilizing
triangulation
to
pinpoint
the
cell
phones
[sic]
location."
Locational
Privacy,
supra
note
9.
2018]
