48 Pages Posted: 8 Aug 2013 Last revised: 24 Dec 2013
Date Written: 2013
Privacy concerns resonate with the American people. Although the right to privacy is not explicitly protected in the United States Constitution, the Supreme Court has found the right to privacy rooted within the Constitution based on various amendments. In the modern era, with rapid advances in technology, threats to privacy abound including new surveillance methods by law enforcement. There is a growing tension between an individual’s right to privacy and our collective right to public safety. This latter right is often protected by law enforcement’s use of electronic surveillance as an investigative tool, but may be done at times inconsistent with constitutional rights.
Recently, the American Civil Liberties Union brought to light the popular use of government surveillance of cell phones, including the gathering of all cell phone numbers utilizing a specific cell site location. Known as a “cell tower dump,” such procedures essentially obtain all of the telephone number records from a particular cell site tower for a given time period: “A tower dump allows police to request the phone numbers of all phones that connected to a specific tower within a given period of time.” State and federal courts have barely addressed cell tower dumps. However, the actions by most of the largest cell phone providers, as well as personal experience and conversations with other magistrate judges, strongly suggest “that it has become a relatively routine investigative technique” for law enforcement officials.
No federal statute directly addresses whether and how law enforcement officers may seek a cell tower dump from cellular telephone providers. Assistant United States Attorneys, with the encouragement of the United States Department of Justice, apply for court orders authorizing cell tower dumps pursuant to a provision in the Electronic Communications Privacy Act of 1986. The pertinent provision poses a procedural hurdle less stringent than a warrant based on probable cause, which in turn raises significant constitutional concerns.
This article provides a brief description of cellular telephone and cell-site technology in Part I. Next, Part II addresses the evolution of Fourth Amendment jurisprudence and argues that the reasonable expectation of privacy standard applies to electronic surveillance such as cell tower dumps. In Part III, the discussion follows the development of statutes addressing electronic surveillance and argues that cell tower dumps request more information than simply just telephone numbers. Part IV analyzes records from both cellular service providers and the federal government to conclude that cell tower dumps routinely occur. Part V assesses the few decisions that even discuss cell tower dumps and argues that the analysis is either non-existent or flawed regarding the use of the Stored Communications Act to permit cell tower dumps. Next, Part VI asserts that cell tower dumps cannot be analyzed pursuant to the Stored Communications Act because the language of the statute is inapplicable and the amount of information sought requires a warrant based on probable cause and concludes by proposing some protocols to safeguard individual privacy rights.
Keywords: constitutional rights, privacy, government, electronic, surveillance, cell phone, cell tower dump, Electronic Communications Privacy Act of 1986, cell-site technology, fourth amendment jurisprudence, Stored Communication Act
JEL Classification: K19, K39, K49
Suggested Citation: Suggested Citation
Owsley, Brian, The Fourth Amendment Implications of the Government's Use of Cell Tower Dumps in its Electronic Surveillance (2013). University of Pennsylvania Journal of Constitutional Law, Vol. 16, 2013. Available at SSRN: https://ssrn.com/abstract=2307525
By Orin Kerr
By Julie Cohen