Officials admitted for the first time Wednesday that the National Security Agency tracked Americans’ cell phone location data from cell towers in a pilot program in 2010–2011. While it has thus far only collected samples to test its systems, NSA director Gen. Keith Alexander added that bulk collection “may be something that is a future requirement for the country.”
Alexander assured the Senate Judiciary Committee that NSA would be required to consult with Congress and get approval from the Foreign Intelligence Surveillance Court before moving forward with such a program. But as Alexander talks of bringing review of cell site surveillance to the secret, one-sided FISA court, that very issue is still being hashed out in our public ones.
No court has addressed the sort of bulk collection the NSA might undertake. But two federal appeals courts recently upheld at least some collection of cell site data, in divisive opinions under split rationales, while two others rejected at least some such data collection as an improper search. All of these decisions consider the U.S. Supreme Court’s 2010 ruling in U.S. v. Jones invalidating warrantless GPS tracking of a criminal suspect. Collectively, they raise important questions about the constitutionality of mass collection.
The U.S. Court of Appeals for the Sixth Circuit upheld police tracking of one person over the course of three days, distinguishing that from”comprehensive” tracking that was less limited in time, scope, and target (such as widespread collection of all Americans’ data). “There may be situations where police, using otherwise legal methods, so comprehensively track a person’s activities that the very comprehensiveness of the tracking is unreasonable for Fourth Amendment purposes,” the court wrote. The Fifth Circuit upheld requests to phone companies for particular geo-location data as part of criminal investigations. There, they relied upon an old doctrine protecting information obtained through third parties like cell phone companies that Justice Sonia Sotomayor — a former prosecutor — already called into question in her concurring opinion in U.S. v. Jones. She warned:
[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. … Perhaps, as Justice Alito notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.
In another concurring opinion in that Supreme Court case, four other justices said that prolonged, regular tracking of individuals’ movements likely does not comport with the Fourth Amendment. Justice Samuel Alito wrote for the group:
[R]elatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not — and indeed, in the main, simply could not — secretly monitor and catalogue every single movement of an individual’s car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark.
Even the narrowest opinion to invalidate the GPS tracking, Justice Antonin Scalia’s majority opinion that found attaching a GPS to a car was a physical trespass, referenced Supreme Court precedent suggesting that “’different constitutional principles may be applicable’ to ‘dragnet-type law enforcement practices’ of the type that GPS tracking made possible here.”
All of these factors would at least be relevant to U.S. Supreme Court review of a geo-location tracking program. But there is reason to believe they may not be considered if the current FISA court reviews this same program. As Harvard law professor Yochai Benkler pointed out, in the recently released FISA court opinion upholding widespread collection of phone metadata, the court did not even mention U.S. v Jones. Had there been an adversarial party in that proceeding, rather than just the government asking for a rubber stamp of its request, the court would not have “ignored the grave constitutional issues raised by the three opinions,” Benkler writes.
As compared to the collection of phone metadata such as phone numbers upheld by the FISA court, cell site data collection would be an even more direct challenge to the U.S. Supreme Court’s 2010 ruling invalidating the warrantless GPS police tracking. None of the cases decided thus far consider the national security interests at play in an NSA surveillance program. And none of them provide definitive guidance on this program. But they at least suggest that, should NSA pursue such a program, public review might yield a different outcome than review solely by today’s FISA court.