Analysis of Fifth Circuit CSLI oral argument: Government likely to win on Fourth Amendment issue

The Fifth Circuit heard oral argument yesterday on the oft-discussed cell site data case. The Fives are the second federal court of appeals to consider this issue; the Third Circuit addressed cell site data in relation to the Fourth Amendment in 2010.

The issues presented in this case are two-fold: first, whether the Constitution requires a warrant based on probable cause (rather than a court order issued under a lesser standard provided by § 2703(d) of the Stored Communications Act) when the Government wants cell phone providers to turn over data showing the location of the cell phone. In other words, the issue is whether the Government needs to have probable cause to turn cell phones into semi-specific tracking devices. The second issue is, assuming that cell site data is not protected by the Fourth Amendment, whether the magistrate judge has discretion to deny the Government’s § 2703(d) application for this data and insist upon a showing of probable cause.

The argument in this case was an hour long, much longer than the customary forty minutes usually allotted to parties arguing before the Fifth Circuit. The extra time may have been a result of the truly bizarre procedural posture of this case. According to the Government, it presented “specific and articulable facts” pursuant to § 2703(d) of the Stored Communications Act that the cell phone numbers of three people were pertinent to criminal investigations. The magistrate judge, however, never granted or denied the Government’s § 2703(d) applications; and, instead, ruled that this data was protected by the Fourth Amendment and that the Government needed probable cause to obtain it. Thus, the Government’s argument was presented by Nathan Judish, an attorney from the Department of Justice. There was no traditional appellee represented at oral argument; the people whose cell site data the Government was trying to obtain are anonymous, so there was no one with a direct, personal interest in the outcome of this case advocating for Fourth Amendment protection. Instead, Professor Susan Freiwald and Hanni Fakhoury (EFF) presented the arguments of the “Fourth Amendment and the people,” whatever that means.

The three-judge panel appointed to hear oral arguments were Fifth Circuit Judges Thomas Reavley, Edith Clement, and James Dennis. Interestingly enough, this was a liberal-majority panel in a notoriously conservative circuit. Judge Reavley was appointed by the Carter administration, and Judge Dennis was appointed by the Clinton administration. A liberal-majority panel on the Fifth Circuit is like the Loch Ness Monster: there are reports of people seeing it happen, but I have always figured that it was a myth propagated by circus conductors and the ACLU.

When I saw the membership of the panel, my first instinct was that the panel would render a 2-1 decision holding that cell site data is protected by the Fourth Amendment. I figured that Judges Reavley and Dennis would make up the majority, and Judge Clement would be the lone dissenter. After hearing oral argument, I do not think my prediction could be more wrong. I think the majority of the panel will hold that this data is not protected by the Fourth Amendment, Judge Reavley (and possibly Judge Dennis) siding with Judge Clement.

Why do I think this?

First, the judges struggled to understand the technology. When I read the briefs, I was astounded that they were not written with the understanding that these judges were not going to have an innate understanding of rather complicated cell phone technology. The judges on the panel ranged in age from sixty-four to ninety-one. I think it is safe to assume that they know how to use a cell phone, or at least, they have seen one of their law clerks use a cell phone at some point. Any imputed knowledge beyond that, i.e., the definition of a femtocell, is ludicrous. A number of the panel’s questions were geared toward trying to understand basic cell site technology, and I can see why. The Government’s brief does not define “cell site data” until page seven. Then, once you get to page seven, the Government defines cell site data as “the antenna tower and sector to which the cell phone sends its signal.” Now, imagine you are speaking to your grandmother and that is how you explain the concept of cell site data to her. Is she going to have any idea what you are talking about? I think not. I would offer the non-scientific estimate that at least a third of the questions during oral argument related to the basic tenets of the technology involved. These questions should have been addressed within the first five pages of the parties’ briefs; yet I doubt whether the panel understands the technology and the type of information being produced, even after oral argument. Ultimately, the real shortfalling is on the amici who were trying to convince the court that revelation of this data to the Government amounted to a significant intrusion into privacy. If the court cannot understand how cell phone technology works and why consumers have a privacy interest in this data, the Fifth Circuit cannot hold that cell site data is protected by the Fourth Amendment.

Second, there was no definite explanation about what kind of data would be produced as a result of these § 2703(d) applications. Judge Reavley told the parties, “It is critical to know exactly what information is being obtained in these . . . cases.” Yet, he received two different answers during oral argument. The Government mumbled something about call-times and cell phone towers; Professor Susan Freiwald and Hanni Fakhoury painted a picture that was positively Orwellian with the Government determining location of the cell phone within fifty feet, even when the cell phone was turned off. It is clear that the court did not have access to the § 2703(d) applications prior to oral argument and has no understanding whatsoever what type of data will be revealed if the applications are granted. Perhaps things will be clearer after an over-worked, under-paid law clerk receives the applications along with the case record after oral argument. But, as of oral argument, it is clear that only the Government was privy to this information, and the Department of Justice was less than forthcoming.

Third, the panel asked no questions during the time the parties were discussing the Fourth Amendment. This generally indicates a lack of interest. Also, Judge Reavley stated during oral argument, “I just don’t see us announcing a law that you have to have a probable cause showing from a magistrate under this statute. Period.”

One thing I found very interesting about argument was the judges’ constant questions to the parties about how they can avoid the Fourth Amendment issue altogether. Judge Clement raised a very good point during oral argument asking the Government whether the issue in the case was moot. The Government filed these § 2703(d) applications in 2010. Although the Government’s attorney assured the court that the criminal investigations were ongoing, I think Judge Clement found this doubtful. To my knowledge, however, the Fifth Circuit has no way of assuring that this case is not moot, and the Government is still pursuing these criminal investigations. Ultimately, the Fives’ continued jurisdiction over this matter rests upon the Government’s pinky swear that these criminal investigations abide. Oy vey.

Although the Government is likely to win the Fourth Amendment argument, I think the Fifth Circuit will hold that it is within a magistrate judge’s discretion to reject an application for cell site location information which would therefore impose a probable cause requirement to obtain the data. This is the result reached by the Third Circuit, and the judges seemed hesitant to create a circuit split.

So, my trepidatious prediction, based on oral argument, is that the parties will split the baby: cell site data, at least in its current iteration, is not protected by the Fourth Amendment, but there are certain situations where a magistrate judge can insist upon a showing of probable cause when considering a § 2703(d) application. If the case does reach the Fourth Amendment issue, I would not be surprised that there are some subsequent rumblings about an en banc vote.