No.

16-402

In the
Supreme Court of the United States

TIMOTHY IVORY CARPENTER,

Petitioner,
v.
UNITED STATES
Respondent.

On Writ of Certiorari to the United States

Court of A ppeals for the Sixth Circuit

BRIEF OF AMICI CURIAE ELECTRONIC FRONTIER

FOUNDATION, BRENNAN CENTER FOR JUSTICE,
THE CONSTITUTION PROJECT, NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
AND NATIONAL ASSOCIATION OF FEDERAL
DEFENDERS IN SUPPORT OF PETITIONER

A ndrew Crocker
Counsel of Record
Jennifer Lynch
Jamie Williams
Electronic Frontier
Foundation
815 Eddy Street
San Francisco, CA 94109
(415) 436-9333
andrew@eff.org

Counsel for Amici Curiae

(Additional Counsel listed inside cover)

274756

A
(800) 274-3321 (800) 359-6859
Faiza Patel David Oscar Markus
Michael W. Price Co-Chair, Amicus
Rachel Levinson-Waldman Committee
Brennan Center for Justice National A ssociation
at NYU School of Law of Criminal Defense
161 Avenue of the Americas, Lawyers
12th Floor 40 NW Third Street, PH1
New York, NY 10013 Miami, FL 33128

Counsel for Brennan Counsel for National

Center for Justice at Association of Criminal
NYU School of Law Defense Lawyers

Jake Laperruque Meghan Skelton

The Constitution Project Donna Coltharp
1200 18th Street NW, Sarah Gannett
Suite 1000 Dan K aplan
Washington, DC 20036 Co-Chairs, NAFD Amicus
Committee
Counsel for The National A ssociation of
Constitution Project Federal Defenders
850 West Adams Street,
Suite 201
Phoenix, AZ 85007

Counsel for National

Association of Federal
Defenders
 i

TABLE OF CONTENTS
Page
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. There Has Been a Dramatic Increase

in Location Data Generated by Cell
Phones, Collected by Third Parties, and
Routinely Obtained by Law Enforcement
Without a Warrant. . . . . . . . . . . . . . . . . . . . . . . . . 5

A. The Number of Cell Phones and Cell Sites

Has Increased Significantly in the Last
Thirty Years. . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. As the Number of Cell Towers and

Amount of Data Transmitted Increases,
the Location Data Generated by
Cell Phones Becomes Increasingly
More Detailed. . . . . . . . . . . . . . . . . . . . . . . . 10

C. Law Enforcement Routinely Requests

Access to Months of CSLI Without a
Warrant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
 ii

Table of Contents
Page
II. CSLI Paints a Revealing Portrait of a
Persons Movements, Presenting Even
Greater Privacy Concerns Than the GPS
Tracker at Issue in Jones. . . . . . . . . . . . . . . . . . 15

III. T he T h i rd-Pa r t y Doc t r i ne Is I l l-

Suited to the Digital Age and Should
Not Apply to CSLI. . . . . . . . . . . . . . . . . . . . . . . . 19

A. Cell Phone Users Do Not Voluntarily

Convey CSLI to Service Providers. . . . . . 20

i. The Vast Majority of CSLI Is

Generated Automatically . . . . . . . . . . . 20

ii. T h e r e I s N o R e a s o n a b l e
Alternative to Conveying CSLI
to Third-Party Service Providers . . . . 22

B. T h e T h i r d - P a r t y D o c t r i n e I s
Incompatible w ith Moder n
Communications, and A mericans
Reasonably Expect Location Data to
Remain Private. . . . . . . . . . . . . . . . . . . . . . . 23

C. Cell Phone Location Information

Impl icat es Fi rst A mend ment
I nt er e st s t hat R equ i r e Fou r t h
Amendment Protection. . . . . . . . . . . . . . . . 26

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
 iii

TABLE OF CITED AUTHORITIES

Page
CASES

Bond v. United States,

529 U.S. 334 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

City of Ontario v. Quon,

560 U.S. 746 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Commonwealth v. Augustine,
4 N.E.3d 846 (Mass. 2014) . . . . . . . . . . . . . . . . . . 18, 21

Ferguson v. City of Charleston,

532 U.S. 67 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

In re Application for Pen Register & Trap/Trace

Device with Cell Site Location Auth.,
396 F. Supp. 2d 747 (S.D. Tex. 2005) . . . . . . . . . . . . . 15

In re Application for Tel. Info. Needed for a

Criminal Investigation,
119 F. Supp. 3d 1011 (N.D. Cal. 2015) . . . . . . . . passim

In re Application of the U.S. for an Order

Authorizing the Release of Historical Cell-
Site Info.,
809 F. Supp. 2d 113 (E.D.N.Y. 2011) . . . . . . . . . . . . . 17

In re Application of U.S. for an Order Directing

a Provider of Elec. Commcn Serv. to Disclose
Records to Govt,
620 F.3d 304 (3d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . 21
 iv

Cited Authorities
Page
In re Application of U.S. for Historical Cell
Site Data,
724 F.3d 600 (5th Cir. 2013) . . . . . . . . . . . . . . . . . . . . 11

Katz v. United States,

389 U.S. 347 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Kyllo v. United States,

533 U.S. 27 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . 18, 26

Marcus v.
Search Warrants of Prop. at 104 E. Tenth St.,
367 U.S. 717 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Maryland v. Macon,
472 U.S. 463 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

NAACP v. Alabama,
357 U.S. 449 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

New York. v. P. J. Video,

475 U.S. 868 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Oliver v. United States,

466 U.S. 170 (1984) . . . . . . . . . . . . . . . . . . . . . . . . 25-26

People v. Weaver,
909 N.E.2d 1195 (N.Y. 2009) . . . . . . . . . . . . . . . . . . . 29

Riley v. California,
134 S. Ct. 2473 (2014) . . . . . . . . . . . . . . . . . . . . . passim
 v

Cited Authorities
Page
Roaden v. Kentucky,
413 U.S. 496 (1973) . . . . . . . . . . . . . . . . . . . . . . . . 27, 29

Roberts v. U.S. Jaycees,

468 U.S. 609 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Smith v. Maryland,
442 U.S. 735 (1979) . . . . . . . . . . . . . . . . . . . . . . . passim

Stanford v. Texas,
379 U.S. 476 (1965) . . . . . . . . . . . . . . . . . . . . . 26-27, 29

State v. Earls,
70 A.3d 630 (N.J. 2013) . . . . . . . . . . . . . . . . . . . . . . . . 22

Stoner v. California,
376 U.S. 483 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Tracey v. State,
152 So. 3d 504 (Fla. 2014) . . . . . . . . . . . . . . . . 11, 16, 21

United States v. Carpenter,

819 F.3d 880 (6th Cir. 2016) . . . . . . . . . . . . . . . . passim

United States v. Cooper,

No. 13cr00693SI1, 2015 WL 881578
(N.D. Cal. March 2, 2015) . . . . . . . . . . . . . . . . . . . . . . 22

United States v. Cotterman,

709 F.3d 952 (9th Cir. 2013) . . . . . . . . . . . . . . . . . . . . 28
 vi

Cited Authorities
Page
United States v. Davis,
785 F.3d 498 (11th Cir. 2015) . . . . . . . . . . . . . 11, 17, 21

United States v. Graham,

824 F.3d 421 (4th Cir. 2016) . . . . . . . . . . . . . . . . passim

United States v. Jacobsen,

466 U.S. 109 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

United States v. Jones,

565 U.S. 400 (2012) . . . . . . . . . . . . . . . . . . . . . . . passim

United States v. Miller,

425 U.S. 435 (1976) . . . . . . . . . . . . . . . . . . . . . . . . 19, 25

United States v. Stimler,

Nos. 15-4053, 15-4094, 15-4095,
2017 WL 3080866 (3d Cir. July 7, 2017) . . . . . . . . . . 21

Walter v. United States,

447 U.S. 649 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Zurcher v. Stanford Daily,

436 U.S. 547 (1978) . . . . . . . . . . . . . . . . . . . . . . . . 27, 29

STATUTES

18 U.S.C. 27012712 . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
 vii

Cited Authorities
Page
CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . . passim

U.S. Const. amend. IV . . . . . . . . . . . . . . . . . . . . . . . passim

LEGISLATIVE AUTHORITIES

Elec t ron ic Com mu n ic at ions P r iva c y A c t

(ECPA) (Pa r t II): Geolocation Pr ivacy
a nd Su r vei l la nce, Hea r i ng Before the
Subcomm. on Crime, Terrorism, Homeland
Secur ity, and Investigations, of the H.
Comm. on the Judiciary, 113th Cong. 50
(2013) (written testimony of Professor Matt
Blaze, University of Pennsylvania) . . . . . . . 7, 9, 12, 13

OTHER AUTHORITIES

Monica Anderson, 6 Facts About Americans

and Their Smar tphones, Pew Research
Center (Apr. 1, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Apple, Share Your Location With Your Family . . . . . 23

AT&T, AT&T Transparency Report (Jan. 2016) . . . . . 13

AT&T, AT&T Transparency Report (Feb. 2017) . . . . . 13

 viii

Cited Authorities
Page
Kev in Bankston & A shkan Soltani, Tiny
Constables and the Cost of Surveillance:
Making Cents Out of United States v. Jones,
123Yale L.J. Online335(2014) . . . . . . . . . . . . . . . . . 16

Jan Lauren Boyles, et al., Privacy and Data

Management on Mobile Devices, Pew Research
Internet & Am. Life Project (2012) . . . . . . . . . . . . . 24

CTIAThe Wireless Association,Annual Year-End

2015 Top-Line Survey Results (May 2016) . . . . . . 6, 8

CTIAThe Wireless Association,Annual Year-End

2016 Top-Line Survey Results (May 2017) . 5, 7, 9, 10

D a v i d D e a s y, T RUSTe S t u d y R e v e a l s
Smartphone Users More Concerned About
Mobile Pr ivacy Than Brand or Screen
Size, TRUSTe Blog (Sept. 5, 2013) . . . . . . . . . . . . . . 25

Jesus Diaz, How Large Is a Petabyte?, Gizmodo

(July 8, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Susan Freiwald, Cell Phone Location Data

and the Fourth Amendment: A Question of
Law, Not Fact, 70 Md. L. Rev. 681 (2011) . . . . . . . . 11

Harris Interactive, 2013 Mobile Consumer

Habits Study (June 2013) . . . . . . . . . . . . . . . . . . . . . . . 5
 ix

Cited Authorities
Page
Letter from Timothy P. McKone, Executive Vice
President, AT&T, to Rep. Edward J. Markey
(Oct. 3, 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Mary Madden, et al., Public Perceptions of

Privacy and Security in the Post-Snowden Era,
Pew Research Ctr. (2014) . . . . . . . . . . . . . . . . . . . . . . 24

Pew Resea rch Center, Mobile Fact Sheet

(Jan. 12, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5, 8

Michael W. Price, Rethinking Privacy: Fourth

Amendment Papers and the Third-Party
Doctrine, J. Natl Security L. & Poly (2015) . . . . . . 29

Marguerite Reardon, Cell Phone Industry Celebrates

Its 25th Birthday, CNET (Oct. 13, 2008) . . . . . . . . . . 5

Bennett Stein, Fighting a Striking Case of

Warrantless Cell Phone Tracking, ACLU
(July 1, 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

T-Mobile, T-Mobile Transparency Repor t

for 2015 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Abigail Tracy, T-Mobile Leads US Wireless

Carriers In Government Data Requests,
Forbes (July 6, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . 14

T w it t e r, FAQ s Ab o u t Ad d i n g L o c a ti o n
to Your Tweets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
 x

Cited Authorities
Page
U.S. Census Bureau, U.S. and World Population
Clock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Verizon, Verizons Transparency Report for the

First Half of 2015 (2015) . . . . . . . . . . . . . . . . . . . . . . . 14

Ver i zon, Ver izo ns Tr ansparen cy Repo r t

for the Second Half of 2015 (2016) . . . . . . . . . . . . . . . 14

Verizon, Verizons Transparency Report for

the First Half of 2016: U.S. Report (2016) . . . . . . . . 14

Verizon, Verizons Transparency Report for the

Second Half of 2016: U.S. Report (2017) . . . . . . . . . . 14

Verizon, Verizon United States Report (2016) . . . . . . . 15

Kathryn Zickuhr, Location-Based Services,

Pew Resea rch Int er net a nd A mer ica n
Life Project (Sept. 12, 2013) . . . . . . . . . . . . . . . . . . . . 24
 1

STATEMENT OF INTEREST1

Amici are organizations committed to ensuring

that constitutional rights are protected as technology
advances and include the Electronic Frontier Foundation,
Brennan Center for Justice, the Constitution Project,
National Association of Criminal Defense Lawyers, and
National Association of Federal Defenders. All of these
organizations have appeared previously as amici before
this Court. Their individual organizational statements are
contained in the Appendix following this brief.

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

Cell phones have become 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. Riley v. California, 134 S. Ct. 2473, 2484
(2014). In Riley, this Court recognized that the ubiquity
of cell phones, combined with their capacity to hold vast
quantities of detailed personal informationpotentially
the sum of an individuals private lifemakes cell
phones so qualitatively and quantitatively different from
their analog counterparts as to require a warrant prior
to search. Id. at 2489.

1. The parties letters consenting to the filing of all amicus

briefs have been filed with the Clerks office. Pursuant to Supreme
Court Rule 37.6, amici state that this brief was not authored in
whole or in part by counsel for any party, and that no person
or entity other than amici or their counsel made a monetary
contribution to fund the preparation or filing of this brief. This
brief does not purport to represent the position of NYU School
of Law.
 2

However, the private information available from cell

phones is not limited to the data stored on the phone itself.
For a phone to receive and share much of that datato
be usable at allit must connect with a cell tower. Every
time it does, it generates information, stored by the phone
company, about which tower the phone connected to
essentially where the phone wason a given date and
time. These small bits of datacalled cell site location
information (CSLI)are aggregated by providers and,
like GPS data, they generate[] a precise, comprehensive
record of a persons public movements that reflects a
wealth of detail about her familial, political, professional,
religious, and sexual associations. United States v. Jones,
565 U.S. 400, 415 (2012) (Sotomayor, J., concurring).

CSLI is proving increasingly useful to law enforcement.

As cell phone use has increased, so too has the number
of cell towers or cell sites, leading to increasingly
precise location information on individuals. Equipped
with CSLI, police can now not only place suspects at
specific crime scenes, but can also reconstruct almost
anyones movements for many months in the past. Yet
law enforcement obtains this type of information without
a warrant, tens of thousands of times a year.

This case requires the Court to address whether the

Fourth Amendment prohibits the warrantless seizure
and search of CSLI. 2 The Sixth Circuit below relied on
this Courts opinion in Smith v. Maryland, 442 U.S. 735
(1979), to hold Americans lack a reasonable expectation

2. The issues in this case are highly similar to United States

v. Graham, 824 F.3d 421 (4th Cir. 2016), which remains pending
on a petition for certiorari in this Court. See No. 16-6308.
 3

of privacy in CSLI because it is a business record held by

third-party service providers. United States v. Carpenter,
819 F.3d 880, 887 (6th Cir. 2016).

But Smith cannot govern here. The now-routine

use of CSLI to reconstruct individuals movements over
extended periods of time was nearly inconceivable just
a few decades ago, Riley, 134 S. Ct. at 2484. Whatever
wisdom the so-called third-party doctrine had in 1979
when Smith was decided, it is entirely 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. Jones, 565 U.S. at 417
(Sotomayor, J. concurring). The Court should instead hold
that CSLI is subject to the full protection of the Fourth
Amendment.

ARGUMENT3

A mericans carry their cell phones w ith them

everywhere and, as they do, they automatically generate
granular and detailed information about where they have
been, and when. The amount of sensitive location data
generated by cell phones has increased dramatically
in recent years, matched only by the increase in
warrantless law enforcement demands for it. But if the
Fourth Amendment is to have any force in the digital
age, then it must keep up with how Americans use cell
phone technology. Using CSLI to determine individuals
movements is as revealing as the GPS tracking this Court
found problematic in Jones, if not more so. And because

3. All websites cited in this brief were last visited on August

8, 2017.
 4

CSLI is becoming more precise over time, it can rival GPS

tracking in geographical accuracy.

Applying the third-party doctrine to CSLI is

inconsistent with the original reasoning underlying this
Courts third-party doctrine cases. These cases stand for
the proposition that individuals lose their expectation of
privacy in certain records they voluntarily convey to
third parties. But CSLI is purely a byproduct of owning
and carrying an operational phoneit is automatically
created whenever the phone tries to send and receive
information, generally without forethought or conscious
action by the owner. And cell phones are so essential
to modern life that it is practically impossible to avoid
creating CSLI in the first place. As a result, individuals
do not voluntarily convey this information to cellular
providers in any normal sense of the word. Instead,
Americans overwhelmingly consider location privacy
important and many take steps to limit sharing of their
location.

Finally, CSLI implicates the same kind of expressive

and associational activities that the Framers sought to
safeguard in the Fourth Amendment. They specified that
papers are protected against unreasonable searches and
seizures to ensure that the warrant requirement applied
in full force when these rights were at stakeas in this
case. This Court should recognize the First Amendment
functions that cell phones play in the digital age and grant
CSLI the Fourth Amendments full protection.
 5

I. There Has Been a Dramatic Increase in Location

Data Generated by Cell Phones, Collected by
Third Parties, and Routinely Obtained by Law
Enforcement Without a Warrant.

A. The Number of Cell Phones and Cell Sites Has

Increased Significantly in the Last Thirty
Years.

Owning a cell phone is not a luxury; at least 95% of

all American adults have a cell phone, and most carry
their phone with them everywhere they go. 4 As the Court
explained in Riley, the element of pervasiveness that
characterizes cell phones has a crucial impact on the
Fourth Amendment issues here. Riley, 134 S. Ct. at 2490.

The first commercial cell phone service was offered in

the United States in 1983 5 four years after this Courts
seminal decision in Smith v. Maryland and three years
before Congress enacted the Stored Communications
Act (SCA), 18 U.S.C. 27012712. Since that time, the
number of mobile device accounts in the United States
has grown to an estimated 396 million72 million more
accounts than people at the end of 2016. 6

4. See Mobile Fact Sheet, Pew Research Center (Jan. 12,

2017), http://w w w.pewinternet.org/fact-sheet/mobile; 2013
Mobile Consumer Habits Study 23, Harris Interactive (June
2013), http://pages.jumio.com/rs/jumio/images/Jumio%20-%20
Mobile%20Consumer%20Habits%20Study-2.pdf.
5. Marguerite Reardon, Cell Phone Industry Celebrates Its
25th Birthday, CNET (Oct. 13, 2008), https://www.cnet.com/news/
cell-phone-industry-celebrates-its-25th-birthday.
6. CTIAThe Wireless Association,Annual Year-End 2016
Top-Line Survey Results 3 (May 2017) (CTIA 2016 Survey),
 6

Chart 1: Number of Mobile Device

Subscriptions in United States7

Cell phones send and receive radio signals via base

stations, known as cell towers. Towers typically have
multiple cell sites facing in three or four different

https://w w w.ctia.org/docs/default-source/default-document-
library/annual-year-end-2016-top-line-survey-results-final.pdf
(396 million wireless subscriber connections); see U.S. Census
Bureau, U.S. and World Population Clock, http://www.census.
gov/popclock (estimated U.S. population 324 million on December
31, 2016).
7. Charts 13 were generated using statistics from an annual
survey of wireless service providers conducted by CTIAThe
Wireless Association, the leading wireless industry trade
association. See CTIAThe Wireless Association,Annual Year-
End 2015 Top-Line Survey Results 3 (May 2016) (CTIA 2015
Survey), available at http://bit.ly/2h38cS4.
 7

directions, each containing antennae that detect radio

signals emanating from phones and that connect the
phones to the cellular network. 8 Cell phones automatically
try to connect to the nearest or strongest base station,
and, as users move farther away from one base station
and closer to another, their phones automatically transfer
the connection to the new base station.

As cell phone use has increased, service providers

have installed more cell sites to handle the load.9 There are
at least 300,000 cell sites operating in the United States,10
and these sites include many more antennae constantly
communicating with all phones in range.11

8. See Electronic Communications Privacy Act (ECPA)

(Part II): Geolocation Privacy and Surveillance, Hearing Before
the Subcomm. on Crime, Terrorism, Homeland Security, and
Investigations, of the H. Comm. on the Judiciary, 113th Cong.
50, at 6, 9 (2013) (written testimony of Professor Matt Blaze,
University of Pennsylvania) (2013 Blaze Testimony), available
at https://judiciary.house.gov/wp-content/uploads/2016/02/Blaze-
Testimony.pdf.
9. 2013 Blaze Testimony at 10 (A sector base station can
handle only a limited number of simultaneous call connections
given the amount of radio spectrum bandwidth allocated to the
wireless carrier.).
10. CTIA 2016 Survey at 4 (308,334 cell sites in 2016).
11. A different estimate reports 645,891 towers and
1,892,359 antennaeincluding those used for cellular and other
communications servicesas of July 9, 2017. AntennaSearch.com,
http://antennasearch.com.
 8

Chart 2: Number of Cell Sites in United States12

Modern cell phones increasing sophistication and

improved capabilities have also driven the need for
more cell sites. After Apple released the iPhone in 2007,
smartphones took off in popularity. Now more than
77% of Americans own smartphones.13 For a significant
percentage of smartphone-dependent Americans, their
phones are their only means of accessing the Internet;
this is disproportionately true for young adults, people
of color, and lower-income Americans.14
12. CTIA 2015 Survey at 10.
13. Mobile Fact Sheet, Pew Research Center; CTIA 2016
Survey at 2 (262 million smartphones in use in 2016).
14. Monica Anderson, 6 Facts About Americans and Their
Smartphones, Pew Research Center (Apr. 1, 2015), http://www.
pewresearch.org/fact-tank/2015/04/01/6-facts-about-americans-
 9

Smartphones allow users to do everything from take

and share photos, connect with friends through a variety
of video and text-based communication tools, find the
fastest route to a new location, stream music, research
health information, play games, and track finances
and do all of these things at the same time. As a result,
smartphones transmit and receive vast amounts of data.
As more Americans have switched to smartphones, the
amount of data transferred over wireless networks has
increased significantly3,500% between 2010 and 2016
alone15 and service providers have installed more towers
to handle that increase.16

and-their-smartphones (noting the following percentages of

smartphone-dependent Americans: 18-29 year olds (15%); adults
with an annual household income of less than $30,000 (13%) versus
adults with an income of $75,000 or above (1%); Latinos (13%) and
African Americans (12%) versus whites (4%)).
15. CTIA 2016 Survey at 3 (388 billion megabytes in 2010,
13,719 billion megabytes in 2016).
16. 2013 Blaze Testimony at 11.
 10

Chart 3: Wireless Data Traffic (in Petabytes)17

B. As the Number of Cell Towers and Amount

of Data Transmitted Increases, the Location
Data Generated by Cell Phones Becomes
Increasingly More Detailed.

When cell phones connect to cell sites, they generate

CSLIa record of the location of the cell tower the
phone connected to at a specific moment in time. Modern
cell phonesparticularly smartphonesgenerate vast
amounts of CSLI because they routinely send and receive
data whenever the phone is on.

17. CTIA 2016 Survey at 4. One source has described a

petabyte of data as the equivalent of 20 million four-drawer
filing cabinets filled with text. See Jesus Diaz, How Large Is a
Petabyte?, Gizmodo (July 8, 2009), http://gizmodo.com/5309889/
how-large-is-a-petabyte.
 11

Cell phones generate CSLI even in the absence of any

user interaction with the phone, in part due to applications
that continually run in the background, sending and
receiving data (e.g., email applications) without a
user having to interact with the cellular telephone.
In re Application for Tel. Info. Needed for a Criminal
Investigation, 119 F. Supp. 3d 1011, 1014 (N.D. Cal. 2015)
(2015 N.D. Cal. Opinion) (quoting Declaration of FBI
Special Agent Hector M. Luna). Although some courts
have limited their analysis of CSLI to data generated
when users place and terminate a call,18 the government
has admitted that it seeks access to CSLI generated by
apps running in the background. See id. at 1033.

Cell phones connect with towers to exchange data on

average every seven to nine minutes but can attempt to
connect as frequently as every seven seconds.19 Because
these data exchanges create a record of when the user
connected to the tower, along with the location of the tower
itself, they reveal where the phoneand by proxy, its
ownerhas traveled. Cell providers store this data for up
to five years 20 and can also track CSLI in near real-time.21
18. See United States v. Davis, 785 F.3d 498, 503 (11th Cir.
2015); see also In re Application of U.S. for Historical Cell Site
Data, 724 F.3d 600, 615 (5th Cir. 2013) (Fifth Circuit Opinion).
19. 2015 N.D. Cal. Opinion, 119 F. Supp. 3d at 1028; Susan
Freiwald, Cell Phone Location Data and the Fourth Amendment:
A Question of Law, Not Fact, 70 Md. L. Rev. 681, 703 (2011).
20. See Letter from Timothy P. McKone, Executive Vice
President, AT&T, to Rep. Edward J. Markey 3 (Oct. 3, 2013),
available at http://www.markey.senate.gov/imo/media/doc/2013-
10-03_ATT_re_Carrier.pdf.
21. See Tracey v. State, 152 So. 3d 504, 507 (Fla. 2014).
 12

Law enforcement officers rely on CSLI to place a

suspect at a specific location at a specific time, such as at
the scene of a crime. See, e.g., United States v. Carpenter,
819 F.3d 880, 884 (6th Cir. 2016) (FBI used CSLI to place
defendants to within 1/2 to 2 miles of robbery locations
at times robberies occurred); see also United States
v. Graham, 796 F.3d 332, 341 (4th Cir. 2015) vacated
by 824 F.3d 421 (4th Cir. 2016) (en banc). In the past,
CSLI was less accurate, because it consisted only of the
location of the base station the phone connected to and
the approximate sector served by that base station.
Sectors could be several miles in diameter, so the phone
could theoretically be anywhere within that area.

Now, however, CSLI has become much more detailed

and specific. As the number of cell towers has increased
and cell sites have become more concentrated, the
geographic area covered by each cell sector has shrunk. 22
Cell phone triangulation (data from three towers instead
of one) allows more precise location tracking. With newer
cell technology, providers can determine not just the
location of the cell site the phone connects to, but, by
correlating the precise time and angle at which a given
devices signal arrives at multiple sector base stations,
they can determine where the phone is located within
a sector. 23 This can shrink accuracy down to within 50
meters. 24 Providers are also using small base stations
designed to serve individual homes or offices, or even

22. 2013 Blaze Testimony at 10.

23. Id. at 12.
24. Id.
 13

particular floors of buildings. 25 With these technologies,

providers can determine a phones latitude and longitude
at a level of accuracy that can approach that of GPS.26

These advances in cell service technology have

especially impacted dense metropolitan areas with large
numbers of mobile devices attempting to exchange data.
In these areas, the higher concentration of towers and
antennae allow phones locations to be pinpointed with
even greater accuracy. 27

C. Law Enforcement Routinely Requests Access

to Months of CSLI Without a Warrant.

As cell phones saturate the country, law enforcement

agencies routinely seek access to CSLI in criminal cases.
The number of these requests is staggering. For example,
AT&T alone received 70,528 requests for CSLI in 2016
and 76,340 requests in 2015. 28 Verizon received 53,532

25. Id. at 11.

26. Id. at 12.
27. Id. at 10-12.
28. See AT&T, AT&T Transparency Report 4, 8 (Feb. 2017),
http://about.att.com/content/dam/csr/Transparency%20Reports/
Feb-2017-Transparency-Report.pdf; AT&T, AT&T Transparency
Report 4 (Jan. 2016), http://about.att.com/content/dam/csr/
Transparency%20Reports/ATT_Transparency%20Report_
Jan%202016.pdf (disclosing number of requests for historical
CSLI, real-time CSLI, and cell tower dumps identifying
information for all phones that connected to a tower during a
given period of time).
 14

requests in 2016 and 50,066 requests in 2015. 29 T-Mobile,

the parent company of MetroPCS and the service provider
in this case, Carpenter, 819 F.3d at 885, does not report
requests for CSLI specifically, but the company received
far more requests for customer data as a whole than its
much larger rivals. 30

As high as these numbers are, they do not tell the

full story. Each request may seek information on many
different phones. For example, in this case, officers
relied on three requests to access information about 16
different phones. Carpenter, 819 F.3d at 884. The quantity
of data requested for each phone may vary, although a

29. See Verizon, Verizons Transparency Report for the

Second Half of 2016: U.S. Report (2017), http://www.verizon.com/
about/portal/transparency-report/wp-content/uploads/2017/01/
Transparency-Report-US-2H-2016.pdf; Verizon, Verizons
Transparency Report for the First Half of 2016: U.S. Report
(2016), https://w w w.verizon.com/about/portal/transparency-
report/wp-content/uploads/2016/07/Transparency-Report-US-
1H-2016.pdf; Verizon, Verizons Transparency Report for the
Second Half of 2015 (2016), https://www.verizon.com/about/portal/
transparency-report/wp-content/uploads/2016/07/Transparency-
Report-US-2H-2015.pdf; Verizon, Verizons Transparency Report
for the First Half of 2015 (2015), https://www.verizon.com/about/
portal/transparency-report/wp-content/uploads/2016/01/Verizon-
Transparency-Report-2015-first-half.pdf (numbers include
location information and cell tower dumps).
3 0 . A b i g a i l T r a c y, T- Mo b i l e L e a d s US Wi r e l e s s
Carriers In Government Data Requests, Forbes (July 6,
2015), http://www.forbes.com/sites/abigailtracy/2015/07/06/t-
mobi le -leads-u-s-w i reless- ca r r iers-in-gover nment - data-
requests/#5cb644f54c88; T-Mobile, T-Mobile Transparency
Report for 2015, available at https://newsroom.t-mobile.com/
content/1020/files/2015TransparencyReport.pdf.
 15

single request often produces CSLI that covers very long

periods. Here, the FBI obtained three to four months of
data, 819 F.3d at 895 (Stranch, J., concurring), while in
Graham, agents were able to obtain 221 days of location
information for Mr. Graham and his co-defendant with a
single request. 796 F.3d at 341 (panel opinion).

The majority of these demands for CSLI are

warrantless. In 2016, Verizon reported that up to three-
quarters of all law enforcement requests for historical
and real-time location information were made via a court
order rather than warrant, 31 like the orders issued under
18 U.S.C. 2703(d) that the government obtained in
both this case and Graham. Carpenter, 819 F.3d at 884;
Graham, 796 F.3d at 344 (panel).

II. CSLI Paints a Revealing Portrait of a Persons

Movements, Presenting Even Greater Privacy
Concerns Than the GPS Tracker at Issue in Jones.

The amount of CSLI generated as a result of societys

reliance on cell phones means that law enforcement has
access to an incredibly detailed picture of peoples private
lives and associations. Jones, 565 U.S. at 415 (Sotomayor,
J., concurring). As noted in one of the first published
opinions to address CSLI, the combination of market
and regulatory stimuli ensures that cell phone tracking
will become more precise with each passing year. In re
Application for Pen Register & Trap/Trace Device with
Cell Site Location Auth., 396 F. Supp. 2d 747, 755 (S.D.
Tex. 2005).

31. See Verizon, Verizon United States Report (2016), https://

w w w.verizon.com/about/portal/transparency-report/?page_
id=2133.
 16

Until the twenty-first century, societys expectation

has been that law enforcement agents and others would
notand indeed, in the main, simply could notsecretly
monitor and catalogue every single movement of an
individuals car for a very long period. Jones, 565 U.S.
at 430 (Alito, J., concurring in the judgment). But CSLI
has eviscerated that expectation and presents even
greater privacy concerns than the GPS device this Court
considered in Jones. 32

First, a GPS device attached to a car can only go where

the car goes, while a cell phone goes everywhere its owner
goes. As this Court noted in Riley, three-quarters of
smart phone users report being within five feet of their
phones most of the time, with 12% admitting they even use
their phones in the shower. 134 S. Ct. at 2490 (citations
omitted). Therefore, unlike GPS monitoring of a vehicle,
examination of historical CSLI over an extended period as
in this case cannot be confined to public spaces and will
invariably enter constitutionally protected areas, such as
private residences. 2015 N.D. Cal. Opinion, 119 F. Supp.
3d at 1023; Tracey, 152 So. 3d at 524 (real time cell phone
tracking can easily invade the right to privacy in ones
home or other private areas, a matter that the government
cannot always anticipate and one which, whenit occurs,

32. According to one estimate, covert car pursuit can cost

$275 per hour while location tracking via a cell phone can cost
as little as $0.04 per hour, meaning that CSLI has increased
governments capacity to track individuals by a factor of thousands.
See Kevin Bankston & Ashkan Soltani, Tiny Constables and the
Cost of Surveillance: Making Cents Out ofUnited States v. Jones,
123Yale L.J. Online335(2014), http://yalelawjournal.org/forum/
tiny-constables-and-the-cost-of-surveillance-making-cents-out-
of-united-states-v-jones.
 17

is clearly a Fourth Amendment violation.). And, in fact,

using records about a defendant in Graham, the ACLU
was able to infer details about his patterns of movement
and presence in private spaces, including when he and his
pregnant wife visited her obstetrician, when he traveled
to or from his home, and nights spent away from home. 33

Second, CSLI can give law enforcement far more

information about a persons movements than the 28
days of monitoring that five members of this Court
found problematic in Jones. See 565 U.S. at 430 (Alito,
J., concurring in the judgment) (line at which tracking of
vehicle became a search was surely crossed before the 4
week mark); id. at 413 (Sotomayor, J., concurring). Here,
the government obtained 88 days and 127 days worth of
location information from each defendant respectively.
In other cases, the government has sought similarly
extended periods of records, up to seven months of location
information worth in a single request. Davis, 785 F.3d at
501 (67 days); In re Application of the U.S. for an Order
Authorizing the Release of Historical Cell-Site Info., 809
F. Supp. 2d 113, 114 (E.D.N.Y. 2011) (113 days); United
States v. Jones, 908 F. Supp. 2d 203, 206 (D.D.C. 2012) (180
days); Graham, 796 F.3d at 349 (221 days). Because cell
providers keep records of CSLI for up to five years, law
enforcement officers could seek access to this data for even
longer periods of time. Such extensive monitoring reveals
a wealth of information about a persons expressive and
associational activities protected by the First Amendment

33. See Bennett Stein, Fighting a Str iking Case of

Warrantless Cell Phone Tracking, ACLU (July 1, 2013), https://
w w w.aclu.org/blog/fighting-striking-case-warrantless-cell-
phone-tracking (noting records were analyzed with Mr. Grahams
assistance and permission).
 18

in addition to the Fourth Amendments protections

against unreasonable searches. See Smith, 442 U.S. at
751 (Marshall, J. dissenting) (citing NAACP v. Alabama,
357 U.S. 449, 463 (1958)); Roberts v. U.S. Jaycees, 468 U.S.
609, 617-18 (1984).

Third, historical CSLI allows police to reconstruct

a persons past movements. As Justice Alito noted in
Jones, tracking a cars location for 28 days would have
[traditionally] required a large team of agents, multiple
vehicles, and perhaps aerial assistance. 565 U.S. at 429
(Alito, J., concurring in the judgment). But CSLI allows
police to go back in time to recreate a persons past
movements, something not possible with the GPS tracker
in Jones and never available through traditional law
enforcement investigative techniques. See Commonwealth
v. Augustine, 4 N.E.3d 846, 865 (Mass. 2014).

Finally, CSLI is generated for all phones, not simply

those under investigation. Accordingly, unlike the GPS
device in Jones, police need not even know in advance
whether they want to track a particular individual. Rather,
they have the ability to track nearly any persons location.

This Court has noted that it is foolish to contend

that the degree of privacy secured to citizens by the
Fourth Amendment has been entirely unaffected by the
advance of technology. Kyllo v. United States, 533 U.S.
27, 33-34 (2001). With historical CSLI, the practical
privacy protections of tracking a persons movement for
months in the pre-computer agenamely difficulty and
costhave faded away. Jones, 565 U.S. at 429 (Alito, J.,
concurring in the judgment).
 19

III. The Third-Party Doctrine Is Ill-Suited to the

Digital Age and Should Not Apply to CSLI.

The majority opinion in Carpenter relied on this

Courts decision in Smith v. Maryland, 442 U.S. 735 (1979)
(citing United States v. Miller, 425 U.S. 435, 442 (1976)), to
hold that the Fourth Amendment does not protect CSLI.
Smith is the principal basis for the so-called third-party
doctrine, which the government argues denies Fourth
Amendment protection for some information that is
voluntarily conveyed to third parties. But as Justice
Sotomayor suggested in United States v. Jones, the third-
party doctrine is ill suited to the digital age and should
not now be extended to modern communications data like
CSLI. 565 U.S. at 417 (Sotomayor, J., concurring).

First, disclosing CSLI to a service provider is not

voluntary in any realistic sense of the word. Cell phones
create CSLI constantly and automatically, even when
they are not in active use. Moreover, they have become
essential to daily life, and are crucial vehicles for First
Amendment activity. Requiring Americans to forgo their
phones in exchange for privacy would therefore present
an untenable choice that is inconsistent with the history
and purpose of the Fourth Amendment.

Second, the third-party doctrine is at odds with the

way technology works and how people communicate today.
Relying on Smith, some courts have mistakenly viewed
information as either completely secret or presumptively
public, failing to account for more nuanced understandings
of privacy.

Finally, the third-party doctrine rests on outdated

expectations about the assumption of risk involved in
 20

making a phone call that fail to account for the modern

First and Fourth Amendment implications of data like
CSLI. Communications data should command heightened
constitutional protections, and at minimum, a warrant
requirement.

A. Cell Phone Users Do Not Voluntarily Convey

CSLI to Service Providers.

In Katz, the Court pointed out that individuals could

exercise their right to privacy in a public phone booth
by remembering to close the phone booth door, thereby
taking an affirmative step to exclude the uninvited
ear. Katz v. United States, 389 U.S. 347, 352 (1967). But
for cell phone users, there is no door, no possible way to
protect the privacy of personal data like CSLI. Exposing
ones location to service providers through CSLI is an
inescapable part of having a cell phone. There is no
practical alternative, no option to mask the metadata, 34
no way to close the proverbial phone booth door. See Katz,
389 U.S at 352.

i. The Vast Majority of CSLI Is Generated

Automatically.

It is a Fourth Amendment fiction that individuals

voluntarily convey CSLI as one would dial a phone
number. Users do not intentionally create CSLI and

34. Many smartphones include a location privacy setting that,

when enabled, prevents applications from accessing the phones
location. However, this setting has no impact on a carriers ability
to learn the cell sector in use, thus giving phone users a false
sense of privacy. 2015 N.D. Cal. Opinion, 119 F. Supp. 3d at 1025.
 21

have no real choice in the matter. In fact, it is unlikely

that cell phone customers are [even] aware that their
cell phone providers collect and store historical location
information. In re Application of U.S. for an Order
Directing a Provider of Elec. Commcn Serv. to Disclose
Records to Govt, 620 F.3d 304, 317 (3d Cir. 2010); see
also United States v. Stimler, Nos. 15-4053, 15-4094, 15-
4095, 2017 WL 3080866, at *5 (3d Cir. July 7, 2017) (users
do not voluntarily disclose CSLI to service providers);
Augustine, 4 N.E.3d at 862 (same).

Rather, as described above, phones generate CSLI

whenever they are on and searching for a signalfrequently,
automatically, and regardless of whether the device is
actively in use. CSLI includes data generated when users
make calls, but that is a drop in the bucket compared to
the data generated by passive activities such as automatic
pinging, continuously running applications (apps), and the
receipt of calls and text messages. 2015 N.D. Cal. Opinion,
119 F. Supp. 3d at 1024 (internal quotations and citation
omitted). Further, the amount of data produced by such
passive activities dwarfs the number of records from
actually making phone calls, and is created with far less
intent, awareness, or affirmative conduct on the part of
the user than what was at issue in . . . Smith. Id. at 1029.
Such unwitting generation of CSLI does not amount to a
voluntary conveyance under the third-party doctrine.
Id.; see also Davis, 785 F.3d at 534 (Martin, J., dissenting);
Tracey, 152 So.3d at 525-26.
 22

ii. There Is No Reasonable Alternative to

Conveying CSLI to Third-Party Service
Providers.

The only way to avoid producing a comprehensive

record of ones movements and associations based on
CSLI is to stop carrying a cell phone, as some courts
have suggested. See, e.g., Carpenter, 819 F.3d at 888;
Graham, 824 F.3d at 427-28. But if a cell phone can be
considered a feature of human anatomy, then owning
and carrying one is hardly a choice at all. Riley, 134 S. Ct.
at 2484. Given that nearly all American adults own a cell
phone, the position that cell phone users volunteer their
location information simply by choosing to activate and
use their phones and to carry the devices is untenable and
unrealistic. See State v. Earls, 70 A.3d 630, 641 (N.J. 2013).

Furthermore, as this Court has repeatedly recognized,

cell phones have become essential to the exercise of First
Amendment freedoms. Indeed, they are so pervasive that
some persons may consider them to be essential means
or necessary instruments for self-expression, even self-
identification. City of Ontario v. Quon, 560 U.S. 746, 760
(2010); Riley, 134 S. Ct. at 2484; see also United States
v. Cooper, No. 13cr00693SI1, 2015 WL 881578, at *8
(N.D. Cal. March 2, 2015) (cell phones are ubiquitous, and
for many, an indispensable gizmo to navigate the social,
economic, cultural and professional realms of modern
society.). Privacy cannot be the price of exercising those
First Amendment freedoms.
 23

B. The Third-Party Doctrine Is Incompatible

with Modern Communications, and Americans
Reasonably Expect Location Data to Remain
Private.

The third-party doctrine is an exceedingly blunt

instrument. In its strongest formulation, it divides
the world in half: data is either completely secret or
it is not private at all. But in practice, the privacy of
communications metadata like CSLI is not an all-or-
nothing endeavor. Some people may affirmatively choose
to disclose their location information publicly, as when
geotagging a Tweet. 35 On the other hand, people may
restrict affirmative sharing of their location information
to a more limited audience, like family or close friends. 36
And at other times, users may not consciously opt to share
their location with anyone at all. But even the decision to
turn off location sharing has no effect on the ability of
service providers to know where a subscribers phone is,
assuming it is working and connected to their network.
2015 N.D. Cal. Opinion, 119 F. Supp. 3d at 1025. If the
third-party doctrine were to apply in this context, then
the whereabouts of every cell phone user in America would
never be private for Fourth Amendment purposes, no
matter which other human beingsif anythey actually
shared that information with.

35. See Twitter, FAQs About Adding Location to Your

Tweets, https://support.twitter.com/articles/78525.
36. See Apple, Share Your Location With Your Family,
https://support.apple.com/en-us/HT201087 (describing how Apple
users can share their iPhone location with family members, with
select family members, or no one at all).
 24

In fact, recent studies show that Americans generally

expect their location information to remain private, even
though they may at times share it with others. In 2014,
the Pew Research Center reported that 82% of Americans
consider the details of their physical location over time
to be sensitive informationmore sensitive than their
relationship history, religious or political views, or the
content of their text messages. 37 In 2012, another Pew
study found that cell phone owners take steps to protect
their personal information and mobile data, and more
than half of smartphone owners have uninstalled or
decided to not install an app due to privacy concerns. 38
Additionally, more than 30% of smartphone owners polled
took affirmative steps to safeguard their privacy and
19% turned off location tracking on their phones (which
disables location tracking for certain apps but does not
prevent the service provider from logging CSLI). 39 The
numbers are higher for teenagers, with nearly half of all
teenagers turning location services off. 40 A 2013 survey
conducted on behalf of Internet company TRUSTe found

37. Mary Madden, et al., Public Perceptions of Privacy

and Secur ity in the Post-Snowden Era 3 4, 36 37, Pew
Research Ctr. (2014), http://www.pewinternet.org/files/2014/11/
PI_PublicPerceptionsofPrivacy_111214.pdf (50% of respondents
believed location information was very sensitive.).
38. Jan Lauren Boyles, et al., Privacy and Data Management
on Mobile Devices, Pew Research Internet & Am. Life Project
(2012), http://www.pewinternet.org/2012/09/05/privacy-and-data-
management-on-mobile-devices.
39. Id.
40. Kathryn Zickuhr, Location-Based Ser vices, Pew
Research Internet and American Life Project (Sept. 12, 2013),
http://www.pewinternet.org/2013/09/12/location-based-services/.
 25

69% of American smartphone users were concerned about

being tracked. 41

Correspondingly, the Court should decline to adopt

a blanket rule that CSLI lacks Fourth Amendment
protection simply because it is shared with a third party.
Indeed, the Courts decisions in Smith and Miller should
not be read to endorse open-ended application of the third
party doctrine in this way. The Court has repeatedly
found that the Fourth Amendment protects some types
of personal information, even if it is exposed to a third-
party. See, e.g., Ferguson v. City of Charleston, 532 U.S.
67, 78 (2001) (patient has reasonable expectation of privacy
in diagnostic test results held by hospital); see also Bond
v. United States, 529 U.S. 334, 33839 (2000) (passenger
retained expectation of privacy in luggage placed in bus
overhead bin despite possibility of external inspection by
others); Stoner v. California, 376 U.S. 483, 489-90 (1963)
(hotel guests are entitled to constitutional protection even
though they provide implied or express permission for
third parties to access their rooms). Communications data,
like CSLI, should receive at least as much constitutional
protection, even if individuals voluntarily convey it
through third-party service providers.

In this light, applying the third-party doctrine to

CSLI would defy Americans expectations about privacy
and disregard the decisions they actually make about
what information to share. Cf. Oliver v. United States,
41. David Deasy, TRUSTe Study Reveals Smartphone
Users More Concerned About Mobile Privacy Than Brand or
Screen Size, TRUSTe Blog (Sept. 5, 2013), http://www.truste.com/
blog/2013/09/05/truste-study-reveals-smartphone-users-more-
concerned-about-mobile-privacy-than-brand-or-screen-size.
 26

466 U.S. 170, 178 (1984) (noting that one factor the Court
uses to assess the degree to which a search infringes
upon individual privacy is the societal understanding
that certain areas deserve the most scrupulous protection
from government invasion). It would also allow for
the warrantless tracking of the historical movements
of anyone who carries a cell phonenearly the entire
population of the country.

Fortunately, the Court made clear in Smith itself that

a normative inquiry would be necessary if individuals
were not accorded a reasonable expectation of privacy
consistent with well-recognized Fourth Amendment
freedoms. 442 U.S. at 740 n.5. In other words, the Fourth
Amendment must protect CSLI to put limits on the power
of technology to shrink the realm of guaranteed privacy.
Kyllo, 533 U.S. at 34.

C. Cell Phone Location Information Implicates

First Amendment Interests that Require
Fourth Amendment Protection.

Cell phone location information implicates the kind

of expressive and associational activities that the Fourth
Amendment was designed to protect. By giving papers
equal billing with persons, houses, and effects, the
Framers indicated that courts have a special obligation
to safeguard First A mendment information from
unreasonable searches and seizures. See U.S. Const.
amend. IV; Marcus v. Search Warrants of Prop. at 104
E. Tenth St., 367 U.S. 717, 729 (1961) (The Bill of Rights
was fashioned against the background of knowledge that
unrestricted power of search and seizure could also be an
instrument for stifling liberty of expression.); Stanford
 27

v. Texas, 379 U.S. 476, 482 (1965) (describing the history

of the Fourth Amendment as largely a history of conflict
between the Crown and the press).

Accordingly, cour ts should apply the Four th

Amendments warrant requirement with scrupulous
exactitude when significant First Amendment rights are
at stake. Stanford, 379 U.S. at 485; Zurcher v. Stanford
Daily, 436 U.S. 547, 564 (1978); see also New York. v. P.
J. Video, 475 U.S. 868, 873-75 (1986) (films); Maryland
v. Macon, 472 U.S. 463, 468 (1985) (magazines); United
States v. Jacobsen, 466 U.S. 109, 114 (1984) (letters);
Walter v. United States, 447 U.S. 649, 655 (1980) (books).
A search or seizure that endangers First Amendment
interests must, at the least, be made pursuant to a warrant
supported by probable cause. See Zurcher, 436 U.S. at 565;
Roaden v. Kentucky, 413 U.S. 496, 504 (1973) (requiring
a warrant to seize an allegedly obscene film because
[t]he setting of the bookstore or the commercial theater ...
invokes such Fourth Amendment warrant requirements).

In Riley, the Court reinforced this approach by

requiring a warrant for cell phone searches incident
to arrest because [m]odern cell phones, as a category,
implicate privacy concerns far beyond those implicated
by most physical searches. 134 S. Ct. at 2488-89.
Significantly, the unanimous Court was alarmed that a
warrantless search would yield not only text messages
and emails, but also [h]istoric location information
that can reconstruct someones movements down to the
minute, not only around town but also within a particular
building. 134 S. Ct. at 2490 (emphasis added). Citing
Justice Sotomayors concurrence in Jones, the Court
determined that such information is qualitatively different
 28

from physical records (like those in Smith, perhaps)

because such a comprehensive record of a persons public
movements . . . reflects a wealth of detail about her familial,
political, professional, religious, and sexual associations.
Id. (citing Jones, 565 U.S. at 415).

The common denominator in these decisions is

that the data implicates the protected expressive and
associational information the Framers sought to shield
from warrantless government interference. Of course, the
phone records in Smith involved private communications
as well. 442 U.S. at 742. But comparing phone records in
1979 to communications metadata in 2017 is like saying
a ride on horseback is materially indistinguishable from
a flight to the moon. See Riley, 134 S. Ct. at 2488; see
also United States v. Cotterman, 709 F.3d 952, 965 (9th
Cir. 2013) (distinguishing the search of a laptop from the
search of hand luggage because technology matters).

Not only is the creation of CSLI unavoidable, but it

is also simple to infer otherwise private expressive and
associational activities from it in ways that were highly
unlikely in Smith. This recognition again undercuts the
voluntariness rationale at the heart of the third-party
doctrine. Phone users in 1979 may have assumed the risk
that the numbers they dial could be divulged to police,
Smith, 442 U.S. at 745, but they did not assume they would
be disclosing their religion, political affiliation, or sexual
preferencesand neither did the Justices.

Even in limited quantities, these staccato signals

can be a telltale sign of social, political, and religious
activities. As in the GPS-tracking context, CSLI can
reveal other activities of indisputably private nature,
 29

like a visit to the psychiatrist, the plastic surgeon, the

abortion clinic, the AIDS treatment center, the strip club,
the criminal defense attorney, the by-the-hour motel, the
union meeting, the mosque, synagogue or church, the gay
bar and on and on. Jones, 565 U.S. at 415 (Sotomayor, J.,
concurring) (quoting People v. Weaver, 909 N.E.2d 1195,
1999 (N.Y. 2009)).

The third-party doctrine advanced in Smith may

have been appropriate for phone calls in 1979, but it is a
poor match for the digital age. Communications data, like
CSLI, has such significant First Amendment implications
that it demands Fourth Amendment protection. See
Roaden, 413 U.S. at 504 (the Court should examine
Fourth Amendment reasonableness in the light of the
values of freedom of expression); Stanford, 379 U.S. at
485; Zurcher, 436 U.S. at 564; see also Michael W. Price,
Rethinking Privacy: Fourth Amendment Papers and
the Third-Party Doctrine, 8 J. Natl Security L. & Poly,
270-71 (2015). CSLI implicates the same kind of expressive
and associational activities that the Framers sought to
protect by including papers in the text of the Fourth
Amendment, and this Court should guard it accordingly.
See Riley, 134 S. Ct. at 2491 (Fourth Amendment requires
clear guidance to law enforcement through categorical
rules).
 30

CONCLUSION

For the reasons stated above, this Court should hold

that sensitive records like cell site location information
are protected by the Fourth Amendments warrant
requirement.

Dated: August 14, 2017

Respectfully submitted,
Faiza Patel A ndrew Crocker
Michael W. Price Counsel of Record
Rachel Levinson-Waldman Jennifer Lynch
Brennan Center for Justice Jamie Williams
at NYU School of Law Electronic Frontier
161 Avenue of the Americas, Foundation
12th Floor 815 Eddy Street
New York, NY 10013 San Francisco, CA 94109
(415) 436-9333
Counsel for Brennan andrew@eff.org
Center for Justice at
NYU School of Law Counsel for Amici Curiae
 31

Jake Laperruque Meghan Skelton

The Constitution Project Donna Coltharp
1200 18th Street NW, Sarah Gannett
Suite 1000 Dan K aplan
Washington, DC 20036 Co-Chairs, NAFD Amicus
Committee
Counsel for The National A ssociation of
Constitution Project Federal Defenders
850 West Adams Street,
David Oscar Markus Suite 201
Co-Chair, Amicus Phoenix, AZ 85007
Committee
National A ssociation Counsel for National
of Criminal Defense Association of Federal
Lawyers Defenders
40 NW Third Street, PH1
Miami, FL 33128

Counsel for National

Association of Criminal
Defense Lawyers
APPENDIX
 1a

Appendix A
Appendix
The Electronic Frontier Foundation (EFF) is a
nonprofit, member-supported civil liberties organization
working to protect rights in the digital world. EFF actively
encourages and challenges government and the courts to
support privacy and safeguard individual autonomy as
emerging technologies become prevalent in society. EFF
has served as amicus in Fourth Amendment cases before
this Court, including in City of Los Angeles v. Patel, 135
S. Ct. 2443 (2015), Riley v. California, 134 S. Ct. 2473
(2014), Maryland v. King, 133 S. Ct. 1958 (2013), United
States v. Jones, 565 U.S. 400 (2012), and City of Ontario
v. Quon, 560 U.S. 746 (2010). EFF has also served as
amicus in numerous cases addressing Fourth Amendment
protections for CSLI, including, In re Application of U.S.
for an Order Directing a Provider of Elec. Commcn Serv.
to Disclose Records to Govt, 620 F.3d 304 (3d Cir. 2010);
In re Application of U.S. for Historical Cell Site Data,
724 F.3d 600 (5th Cir. 2013); Commonwealth v. Augustine,
4 N.E.3d 846 (Mass. 2014); United States v. Davis, 785
F.3d 498 (11th Cir. 2015); In re Application for Tel. Info.
Needed for a Criminal Investigation, 119 F. Supp. 3d 1011
(N.D. Cal. 2015); and United States v. Graham, 824 F.3d
421 (4th Cir. 2016).

The Brennan Center for Justice at NYU School of Law

is a non-partisan public policy and law institute focused on
fundamental issues of democracy and justice. The Centers
Liberty and National Security (LNS) Program uses
innovative policy recommendations, litigation, and public
advocacy to advance effective national security policies
that respect the rule of law and constitutional values. The
LNS Program is particularly concerned with domestic
 2a

Appendix A

intelligence gathering policies, including the dragnet

collection of Americans communications and personal
data, and the concomitant effects on First and Fourth
Amendment freedoms. As part of its work in this area,
the Center has filed numerous amicus briefs on behalf of
itself and others in cases involving electronic surveillance
and privacy issues, including Riley v. California, 134
S. Ct. 2473 (2014); United States v. Jones, 565 U.S. 400
(2012); United States v. Carpenter, 819 F.3d 880 (6th Cir.
2016), petition for cert. docketed, No. 16-402 (Sept. 28,
2016); United States v. Ganias, 824 F.3d 199 (2d Cir. 2016),
petition for cert. docketed, No. 16-263 (Aug. 30, 2016); In re
Warrant to Search a Certain E-Mail Account Controlled
and Maintained by Microsoft Corporation, 829 F.3d 197
(2d Cir. 2016), petition for rehg en banc filed, No. 14-2985
(Oct. 17, 2016); United States v. Moalin, No. 13-50572 (9th
Cir. filed Nov. 5 1015); and United States v. Davis, 785 F.3d
498 (11th Cir. 2015).

The Constitution Project (TCP) is a constitutional

watchdog that brings together legal and policy experts
from across the political spectrum to promote and defend
constitutional safeguards. TCPs bipartisan Liberty
and Security Committee, founded in the aftermath of
September 11th, is composed of policy experts, legal
scholars, and former high-ranking government officials
from all three branches of government. This diverse group
makes policy recommendations to protect both national
security and civil liberties, for programs ranging from
government surveillance to U.S. detention. Based upon
their reports and recommendations, TCP files amicus
briefs in litigation related to these issues. TCP is dedicated
 3a

Appendix A

to ensuring that transformative changes in technology

do not undermine the privacy rights that the Framers
enshrined in our Constitution. For example, TCPs
Liberty and Security Committee has published reports
on public video surveillance systems (analyzing how
rapid technological advances have eroded the distinction
between private and public spaces in the context of such
systems) and location tracking (finding that the Fourth
Amendment requires law enforcement to obtain a warrant
before employing GPS technology to conduct prolonged
tracking of an individuals movements, even if on public
streets).

The National Association of Federal Defenders

(NAFD), formed in 1995, is a nationwide, nonprofit,
volunteer organization whose membership is comprised
of attorneys who work for federal public and community
defender organizations authorized under the Criminal
Justice Act. Each year, federal defenders represent tens of
thousands of individuals in federal court. Amicus NAFD
therefore has both particular expertise and interest in
the subject matter of this litigation.

The National Association of Criminal Defense

Lawyers (NACDL) is a nonprofit voluntary professional
bar association that works on behalf of criminal defense
attorneys to ensure justice and due process for those
accused of crime or misconduct. NACDL was founded
in 1958, and has a nationwide membership of many
thousand direct members, and up to 40,000 members when
affiliates are included. NACDLs members include private
criminal defense lawyers, public defenders, military
 4a

Appendix A

defense counsel, law professors, and judges. NACDL

is the only nationwide professional bar association for
public defenders and private criminal defense lawyers.
NACDL is dedicated to advancing the proper, efficient,
and just administration of justice. Each year, NACDL files
numerous briefs as amicus curiae in the United States
Supreme Court and other federal and state courts, seeking
to provide amicus assistance in cases that present issues
of broad importance to criminal defendants, criminal
defense lawyers, and the criminal justice system as a
whole.

This case presents issues of great importance to

NACDL and the clients its attorneys represent, including
the rights embodied in the Fourth Amendment to be free
from constant and pervasive governmental snooping into
the most private of our affairs.