Third Circuit Considers Privacy Interests in Electronically Collected Information and Whether Such Information is Voluntarily Publicized By User of Electronic Communication Devices

In September 2010, the Third Circuit Court of Appeals became the first federal appeals court to rule on the question of whether the government is required to establish probable cause to obtain cell site location information (“CSLI”) from a cell phone provider. See In the Matter of the Application of the U.S. for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 620 F.3d 304 (3d Cir. 2010). CSLI includes historical information that is collected by cell towers during cell phone calls, which can later be used to render some opinions as to the location of the cell phone during those calls.

The court held that the Stored Communications Act, 18 U.S.C. § 2703(d), permits a court to require the production of CSLI to the government upon “a showing of ‘specific and articulable facts establishing reasonable grounds’ that the information sought is ‘relevant and material to an ongoing criminal investigation.’” Id. at 313. However, the court also held that a court may, in its discretion, require a showing of probable cause that would support the issuance of a warrant. Id. at 320. There is little, if any, guidance in the court’s opinion as to when such a showing should be required.

The opinion, either directly or by implication, expresses some judicial views as to privacy interests raised by CSLI. For example, by virtue of this holding, the court rejected the view that CSLI is tantamount to information from a “tracking device,” i.e., one that “permits tracking of the movement of a person or object,” for which a warrant is required pursuant to Fed. R. Crim. P. 41(d). However, given the speed with which technology changes, future technology may easily alter this result. The court also did not comment on whether a request for information from cell phones or cars equipped with GPS technology would yield the same result. The court likewise rejected the view that cell phone users do not have an interest in protecting CSLI because users “voluntarily share” this information when they make a cell phone call. This conclusion was based, at least in part, upon the view that cell phone users are not generally aware that this information is collected and stored by their service provider.

While the court’s analysis applies strictly speaking to § 2703(d), which is limited to requests by the government, these types of considerations are applicable in any context in which a court is considering an individual’s privacy interests in certain electronically collected or stored information and the extent to which an individual publicizes information through the use of various electronic means of communication.

Jennifer A. Hradil is a Director on the Gibbons E-Discovery Task Force.
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