Extending Riley and Wurie:
Warrantless Privacy Intrusions on Location Records of Texas Defendants
By: Drew Willey, with significant contributions from Angela Cameron, HCPDO Appellate Division

Riley and Wurie are unanimous wins for the Fourth Amendment.[i] Law enforcement is now required to obtain a warrant before searching cell phones incident to arrest. While the ruling is specifically limited to cell phone searches incident to arrest, the determinations about citizens’ privacy in cell phones could be extended, if argued for. Particularly, we could obtain a warrant requirement for location data collected through cell phone companies from cell phone use. While a seemingly narrow situation, prosecutors all over the country use this information to further their theories. This extension of cell phone privacy would be another great win for the fourth amendment.

Technological advances have created “modern 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.”[ii] Justice Roberts’ in depth analysis of cell phone advancements is a refreshing nod from the court to realities of the real world and created a warrant requirement the general public may have assumed already existed. However, our right to privacy is still being put to the test by law enforcement. We keep and conduct a huge amount of private information exchange on our cell phones and smartphones through cell phone companies. Currently, law enforcement is obtaining our private and personal information from cell phone companies through a lowered standard of scrutiny. Particularly, cops are tracking individuals’ location without their knowledge through their cell phones by obtaining the information from cell phone companies, and they can do so without a warrant! The statutes surrounding this area of law are often worded unclearly, because the drafters do not have the knowledge about the technology necessary to be clear, or the technology advances too fast for the wording to be relevant in the slowly approved statutes. Generally, cops will pursue their agendas with the maximum capabilities the law allows, even pushing the envelope too far in some cases. For this reason, it is imperative for statutes and courts’ interpretations to adequately protect our rights.

The cases on point are at times hard to understand, but this issue boils down to whether citizens’ have a reasonable expectation of privacy in their cell phone location information. If not, this information constitutes business records or a release of privacy expectation to a third party, and it is let in at trial. If we do have that expectation of privacy, the acquisition of this information constitutes a search and does not fall within an exception for a warrant, thus requiring a showing of probable cause.

Much of the debate on this issue focuses on federal law, so this article first argues for a warrant requirement under federal law. However, the later discussion of Texas law is also important to keep in mind whenever making this argument, depending on how the prosecution is attempting to justify its warrantless acquisition of cell phone location information.

The United States Code and
the Federal Constitution

Federal statute arguably does not allow law enforcement to request expansive information without a warrant.

            The applicable statute, 18 U.S.C. § 2703, justifying requests for expansive cell phone information reads:

“(c) Records concerning electronic communication service or remote computing service.–(1) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications)”[iii]

The term “record or other information pertaining to a subscriber to or customer” is being expanded by law enforcement to include a vast array of information. It is important to look at the requests by law enforcement to make sure they are not overreaching. These requests can come through subpoenas or court orders, neither requiring probable cause. Further, these requests may be made for any length of time. This information could track a person’s location, their calls, and other intimate information for years.

The words “record or other information” are unclear as to what was intended to be included. This vast amount of information is analogous to the NSA’s collection of metadata currently at issue in federal district courts. The ubiquity of cell phones results in a higher need for protection of citizens’ privacy in regards to information obtained through cell phone records and data.[iv] In 2011 alone, cell phone carriers (not including T-mobile) responded to 1.3 million requests from law enforcement for call data.[v] Given U.S. citizens’ expectation of privacy, this statute should not be interpreted to allow law enforcement to obtain such vast amounts of intimate information without probable cause through a warrant.[vi]

Location information is often discussed directly. Proposed legislation specifically prohibits acquiring this information without a warrant.[vii] This bill is currently in front of the Subcommittee on Crime, Terrorism, Homeland Security, And Investigations. This bill does not address the wording in § 2703 that law enforcement currently uses to justify obtaining location information. The separation of this geolocation protection from § 2703, and inclusion in a different chapter indicates that geolocation information was not intended to be covered by the words “record or other information.” Therefore, § 2703 does not currently authorize law enforcement to obtain location information. However, the ambiguity in the statute creates the opportunity for police to obtain this information without a warrant first, and held accountable only if someone challenges a request, which can be rare. Legislation should make it perfectly clear that a warrant is required.

Constitutional rights are violated when police use cell phones as electronic tracking devices without obtaining a warrant.

Jones found that using electronic tracking methods violate the fourth amendment.[viii] The unanimous Riley court even specifically addresses location information. “Data on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building.”[ix] Smart phones advancements give an expectation of privacy for information from that phone.[x] Therefore, obtaining location information through a cell phone is a search and requires a warrant.

A federal circuit split is moving towards a reasonable expectation of privacy in cell site location information.

In an admittedly narrow 2-1 decision, the fifth circuit ruled that historical cell site information is not protected by an expectation of privacy, but recognizing that cell phone users will want their location private and suggesting their recourse should be a demand to service providers or “lobbying elected representatives to enact statutory protections.”[xi] They concluded location information is a business record and admitted without a warrant. On the other hand, in a somewhat confusing ruling, the third circuit ruled that cell phone users do not voluntarily give cell phone providers their location information when making and receiving calls, indicating this information is not a business record.[xii] Then, from the eleventh circuit, Davis came down this past June ruling “cell site location information is within the subscriber’s reasonable expectation of privacy.”[xiii] Two weeks later, the unanimous decision in Riley and Wurie gave dicta arguably confirming the eleventh circuit’s ruling.[xiv] In federal courts, the trend seems to be moving towards the appropriate regard for privacy, and this trend can continue into Texas if argued.

Federal Law Summary

Requesting an overbroad amount of intimate information over a lengthy period of time without a warrant should not be interpreted as allowable under 18 U.S.C. § 2703 and violates the U.S. Constitution. Provided the advancement of technology in cell phones and the increasing number of cell towers in urban neighborhoods, tracking citizens’ location with electronic devices such as cell phones violates their reasonable expectation of privacy. Furthering the trend in federal circuit courts could lead to a citizen’s instilled right to privacy in location information, which would prevent law enforcement from bypassing a warrant by obtaining the information from cell phone service companies.

The Texas Code and
the Texas Constitution

Under Texas statute, it is also unclear whether law enforcement is required to obtain a warrant for the information gathered.

The applicable statute reads:

“(a) An authorized peace officer may require a provider of an electronic communications service … to disclose electronic customer data that is in electronic storage by obtaining a warrant under Section 5A.

(b) An authorized peace officer may require a provider of an electronic communications service or a provider of a remote computing service to disclose only electronic customer data that is information revealing the identity of customers of the applicable service or information about a customer’s use of the applicable service, without giving the subscriber or customer notice:”[xv]

The statute then lists six ways to obtain the information under (b) through lower standards than a warrant requires.

Under this statutory structure, the requirement of a warrant depends on whether information is (a) “in electronic storage” or (b) “information about a customer’s use”. Vast information is obtained from a customers’ use of cell phone service. From a customers’ act of merely dialing phone numbers, law enforcement can find a cell phone users’ location. However, that location information is also stored by the cell phone company in electronic storage. So, does it fall under (a) or (b), and should a warrant be required to obtain that information?

Information under sec. (a) requires a warrant, and information under sec. (b) does not. Historical cell site information are the records that track individuals’ location, and would seem to fall under “in electronic storage” terms. It would seem broader information falls under sec. (a), as it includes broader terms of “in electronic storage”. Following that reasoning, broader information likely includes cell phone site and location records, requiring a warrant for that information. However, law enforcement is not currently obtaining a warrant for such information. They often seek overbroad information, reaching beyond the scope of sec. (b). They may even fail to cite the correct statute in their applications to avoid obtaining a warrant.

Look for overbroad and overreaching applications when location records are being used.

Applications for information often request information beyond the scope of sec. (b)’s “information about a customer’s use of the applicable [electronic communications] service.”[xvi] They could list every possible cellular phone and internet service provider as potential carriers of the information sought; request email and IP address information, network and routing information, and cell site information.

Again, it is important to view the applications for this information to make sure law enforcement is doing its due diligence to determine the type and scope of information they seek, and not merely on phishing expeditions. A higher standard of scrutiny through a warrant should be applied when law enforcement is seeking vast amounts of private information.

Further, subsection (b) deals with identity and a single customers’ use of service. This section is focused on one individual’s wireless service. It does not indicate that other people’s information may be gathered with the lower standard for law enforcement. As soon as law enforcement starts to gather other people’s information, they are obtaining information under subsection (a), requiring a warrant. Otherwise, law enforcement could obtain information about any and every individual that ever came in contact with the number subject to the search, through outgoing and incoming calls and texts, website visits, and/or emails. If this were allowed, law enforcement could conceivably find a political campaign email sent to a subscriber’s email address connected to his or her phone; and, without looking at the content of the email, be connected to a candidate’s entire distribution list, without ever requesting a warrant. This was not likely the intent of the legislature by including subsection (b). In order to protect citizens’ rights, law enforcement should be required to show probable cause for this type of information.

Make sure law enforcement’s citations justifying their applications are correct.

Often, law enforcement may cite to the wrong section as justification for their warrantless searches. For example, they often rely solely on federal statute and law. If they do not cite which section of the Texas statute they are relying on, the intentions of the Texas legislature and protections of the Texas constitution are lost. Applicable Texas statutes exist and law enforcement should be kept accountable in classifying their searches to adequately determine the warrant requirement.

Texas recognized a higher expectation of privacy in cell phones before SCOTUS.

Before Riley and Wurie, the CCA gave an almost identical ruling in Granville when analyzing the fourth amendment. Texas had a ruling for the expectation of privacy in our cell phones before federal law required us to.[xvii] Granville involved an arrestee who still had an expectation of privacy when his cell phone was in the jail property room.[xviii] Judge Cochran explained, a cell phone contains data that “may involve the most intimate details of a person’s individual life, including text messages, emails, banking, medical, or credit card information, pictures, and videos. … [t]he potential for invasion of privacy, identity theft, or, at a minimum, public embarrassment is enormous.”[xix] Citizens who are not an arrestee and whose phones are not in possession of law enforcement have a higher expectation of privacy in their cell phone information. Those citizens are not aware that their cell phone information is being searched by law enforcement. Law enforcement can use this information to find who citizens are calling, when those calls were made, and how long each call lasted. The search for this intimate information should not be allowed without a warrant.

In Houston, we are faced with one case directly opposed to this argument out of the fourteenth district. Barfield followed the fifth circuit’s reasoning that obtaining “cell tower records from the third-party provider did not violate reasonable privacy expectations.[xx] This case was wrongly decided before the guidance of Riley and Wurie, Granville, and Davis.[xxi] It was also decided on federal law alone and did not apply Texas law, arguably weakening its persuasive strength. With a little help from defense attorneys, the fourteenth district will hopefully soon overturn this ruling. Texas courts should provide for probable cause showings in these situations before SCOTUS dictates us to.

Art. I Sec. 9 of the Texas Constitution may provide Texas citizens higher protections than the U.S. Fourth Amendment.

Richardson ruled the Texas Constitution gave greater protection from warrantless uses of pen registers while stating,

“The mere fact that a telephone caller has disclosed the number called to the telephone company for the limited purpose of obtaining the services does not invariably lead to the conclusion that the caller has relinquished his expectation of privacy such that the telephone company is free to turn the information over to anyone, especially the police, absent legal process.”[xxii]

As protection from state constitutions can only be greater than the fourth amendment, Texas courts should follow this ruling to find the same or more expectation of privacy is applicable to the Texas Constitution.[xxiii] The federal constitution and decision of the federal courts provide the minimum protection required by states.[xxiv] “The federal constitution sets the floor for individual rights; state constitutions establish the ceiling.”[xxv]

Art. I Sec. 9 of the Texas Constitution, in this regard, provides Texas citizens more protection than the fourth amendment. Often, law enforcement relies solely on federal law for these types of warrantless searches. While it seems these searches still violate the federal constitution, it is a closer call under federal law. These violations become clearer under Texas law. Texas citizens should not be subject to searches of information by merely dialing numbers on our cell phones absent the legal process of obtaining a warrant.[xxvi] Similarly, many other states have given their citizens “a reasonable expectation of privacy in the telephone numbers dialed on the telephone.”[xxvii] The company’s records of this intimate information do not diminish a person’s expectation of privacy in their cell phone. Law enforcement may not circumvent searching an individual’s cell phone by acquiring the records from a cell phone company. Location information obtained in this manner should be excluded from evidence unless a warrant was used.

Texas Law Summary

When law enforcement seeks expansive information, Texas statute and protections of the Texas constitution are at play.[xxviii] Following dicta in Granville, Barfield should be overturned.[xxix] Citizens’ expectation of privacy should be protected from warrantless searches of cell providers’ location information of their subscribers, especially under the added protection of Texas law.

Conclusion

Citizens have an expectation of privacy with their cell phones.[xxx] Texas citizens are afforded an expectation of privacy that extends to the phone numbers they dial on their phones.[xxxi] Citizens also share an expectation of privacy from electronic tracking devices.[xxxii] Extending Riley and Wurie to protect us from warrantless acquisition of cell site location information takes more defense attorneys making the arguments; after which, we could make a simple edit to the last sentiments of Riley: “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life,’ [citation omitted]. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple–get a warrant.”[xxxiii]

[i] Riley v. California, 573 U.S. ___ (2014)

[ii] Id. at 9

[iii] 18 U.S.C. § 2703 (emphasis added)

[iv] Klayman v. Obama, 957 F. Supp. 2d 1, 35-36 (D.D.C. 2013); but cf. Am. Civil Liberties Union v. Clapper, 959 F. Supp. 2d 724, 749 (S.D.N.Y. 2013)

[v] Peter Maass and Megha Rajagopalan, That’s No Phone. That’s My Tracker, http://www.propublica.org/article/thats-no-phone.-thats-my-tracker (July 13, 2012)

[vi] In re U.S. for Historical Cell Site Data, 724 F.3d 600, 615-16 (5th Cir. 2013) (Dennis, CJ., dissenting) (discussing the statutory interpretation canon of constitutional avoidance)

[vii] 2013 CONG US HR 983, Sec. 3. GEOLOCATION INFORMATION PROTECTION

[viii] United States v. Jones, 132 S. Ct. 945, 949, 181 L. Ed. 2d 911 (reasoning a trespass, in part, constituted the search, but also using a Katz analysis to determine warrantless use of a GPS tracking system violated the fourth amendment; Justice Alito’s concurrence also recognizes that technological advances can affect the Katz standard of a reasonable expectation of privacy)

[ix] Riley, 573 U.S. ___ at 19-20

[x] Id.; United States v. Davis, No. 12-12928, 23 (11th Cir. 2014); State v. Granville, PD-1095-12, 2014 WL 714730 (Tex. Crim. App. Feb. 26, 2014), reh’g denied (Apr. 2, 2014)

[xi] In re Application of the United States of America for Historical Cell Site Data, 724 F.3d 600, 615 (2013)

[xii] In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 317-18 (3rd Cir. 2010)

[xiii] Davis, No. 12-12928, 23 (11th Cir. 2014)

[xiv] Riley, 573 U.S. ___

[xv] Tex. Crim. Proc. Code art. 18.21 Sec. 4 (emphasis added)

[xvi] Art. 18.21 Sec. 4(b)

[xvii] Granville, PD-1095-12, 2014 WL 714730

[xviii] Id.

[xix] Id.

[xx] Barfield v. State, 416 S.W.3d 743, 749 (Tex. App. – Houston [14 Dist.] 2013 no pet.)

[xxi] See supra, note ix.

[xxii] Richardson v. State, 865 S.W.2d 944, 951 (Tex. Crim. App. 1993) (the court further discusses the issue at *953: “[W]e believe it would be likewise unfair to hold that the customer ‘assumes the risk’ of public disclosure of a number he dials on the telephone. Other than for billing purposes, the telephone company itself has no interest in memorializing that information. Moreover, the telephone company is fiercely protective of what it considers the privacy interest of its customers even in the information it does record in the ordinary course of business—as any private citizen will discover if he attempts to obtain the telephone bill of another customer without that other’s express permission. [cite omitted]. It goes without saying that telecommunications are pervasive in our society. The telephone company’s vigilance in protecting from public disclosure the uses to which its customers put their telephones reflects a value that is equally pervasive. As with information imparted to a doctor, we share a common understanding that the numbers we call remain our own affair, and will go no further. Thus, society recognizes as objectively reasonable the expectation of the telephone customer that the numbers he dials as a necessary incident of his use of the telephone will not be published to the rest of the world.”)

[xxiii] See id. at 947

[xxiv] See Heitman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1991)

[xxv] Id (citing LeCroy v. Hanlon, 713 S.W.2d 335, 338 (Tex. 1986))

[xxvi] See Richardson, 865 S.W.2d at 951

[xxvii] Id. at 950-51 (citing  State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982) (New Jersey Constitution gives a telephone subscriber a constitutionally protected privacy interest in the telephone company’s home toll billing records for the subscriber’s telephone); People v. Blair, 25 Cal.3d 640, 159 Cal.Rptr. 818, at 826, 602 P.2d 738, at 746 (1979) (“a hotel guest may reasonably expect that the calls he makes from his room are recorded by the hotel for billing purposes only, and will not be disclosed to others without legal process”); Commonwealth v. Beauford, 327 Pa.Super. 253, 475 A.2d 783, at 791 (1984) (“an individual’s expectation of privacy in telephone numbers he calls is reasonable, legitimate, and is protected by the State Constitution against government surveillance and intrusion without probable cause”); People v. Sporleder, 666 P.2d 135 (Colo.1983) (under the Colorado Constitution a telephone subscriber has a legitimate expectation of privacy that telephone numbers dialed on a home telephone will remain private and that in the absence of exigent circumstances law enforcement officers must have a search warrant supported by probable cause prior to the installation of a pen register); State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808, 813 (1986)  (“The privacy interests of citizens which are protected by article 1, section 7 of the Washington State Constitution prevent the defendant’s long distance telephone records from being obtained from the phone company, or any pen register from being installed on her telephone connections, without a search warrant”); State v. Thompson, 114 Idaho 746, 760 P.2d 1162 (1988) (Installation of a pen register on defendant’s telephone line was a search under the State Constitution); Rothman v. State, 70 Haw. 546, 779 P.2d 1, at 7 (1989) (“persons having private telephone lines have a reasonable expectation of privacy with respect to the communication of the numbers they call, and the numbers of incoming calls, and the seizure of those numbers by the government, without a warrant, would violate such persons’ right to privacy”))

[xxviii] Art. 18.21 Sec. 4(a); Tex. Const. Art. I Sec. 9; See Richardson, 865 S.W.2d 944

[xxix] See Granville, PD-1095-12, 2014 WL 714730; also see Barfield, 416 S.W.3d 743, 746 (decided before Granville)

[xxx] See Granville, PD-1095-12, 2014 WL 714730

[xxxi] Richardson, 865 S.W.2d at 947

[xxxii] Jones, 132 S. Ct. 945, 949, 181 L. Ed. 2d 911

[xxxiii] Riley, 573 U.S. ___ at 28 (strikethrough added)