By Ross Todd, Fr0m The Recorder

Joining a growing national debate about government surveillance in the digital age, a federal judge in San Francisco put federal agents and prosecutors in the Northern District of California on notice that Fourth Amendment protections apply to the troves of historical cell site data they get from telecommunications companies.

U.S. District Senior Judge Susan Illston issued an opinion early this month in United States v. Cooper, 13-693, finding that the government should have gotten a search warrant to access 60 days of historical cell site data used to track the whereabouts of Elijah Cooper, the target of a drug investigation.

“A cell phone user’s reasonable expectation of privacy in his or her location is especially acute when the call is made from a constitutionally protected area, such as inside a home, but is also reasonable even when the call is made in public,” Illston wrote.

Privacy advocates and former prosecutors agree that the ruling could profoundly affect the way federal agents and prosecutors conduct investigations in the Northern District. Perhaps more importantly, the ruling could embolden the district’s magistrate judges to further scrutinize the government’s requests for digital surveillance.

“This decision will certainly stiffen any magistrate’s spine who is taking a look at one of these requests from the government,” said defense lawyer Ed Swanson of Swanson & McNamara, who is not involved in the Cooper case. Swanson said he’s unsure of how often the government gets access to location information from cellphone metadata without showing the probable cause necessary to get a warrant. But Illston’s decision “will certainly provoke a lot more questioning from the defense bar” about the government’s methods, he said.

Illston’s decision, however useful it may be to the defense bar moving forward, came as little comfort to Cooper and his lawyer, Ethan Balogh of Coleman, Balogh & Scott. Although Illston agreed that the government should have gotten a search warrant to access Cooper’s whereabouts using records obtained from his Metro PCS wireless account, she denied his motion to suppress the evidence gleaned from the geographic coordinates of the cell tower pinged when he initiated and concluded calls. Cooper’s case fell within a “good faith” exception to the rules about excluding evidence obtained unconstitutionally, since there was no binding Ninth Circuit case law directing investigators that they needed a search warrant. Balogh declined to comment on the decision. A spokesman for the U.S. attorney’s office didn’t respond to phone and email messages.

The government will have a harder time making that case that it’s acting in good faith if it continues accessing cell site records without a warrant, said UC Hastings College of the Law Professor Rory Little. “As of the day of this decision, the reality is that the government is on notice that, at least according to this judge, they [need a warrant],” said Little, a former appellate chief for the U.S. Attorney’s Office for the Northern District of California.

Little said if prosecutors thought the issue were important enough, they could file a motion for reconsideration with Illston. But since the judge’s opinion was an interlocutory ruling that the government won, there’s no grounds for appeal. “No final judgment has been entered against anybody. The U.S. hasn’t lost and Cooper hasn’t won,” Little said. “If he pled guilty before trial, this case could be terminated without appeal, and the decision effectively won’t see the light of day.” That said, Little added, this is the type of decision the U.S. attorney’s office would flag to the U.S. Solicitor General’s Office, which is likely monitoring similar cases across the country.

Hanni Fakhoury, a senior staff attorney at the Electronic Frontier Foundation who works on government surveillance issues, said Illston’s decision comes against a backdrop of “a vigorous circuit court split” on whether law enforcement needs a warrant to obtain historical cell site data. One circuit panel has found the government doesn’t need a warrant for it, another has said sometimes it does, and, in an opinion that Illston cited prominently, an Eleventh Circuit panel found in United States v. Davis that the government does indeed need a warrant—but that decision was then vacated and reheard en banc in late February.

Former federal prosecutors say forcing the government to get a search warrant to go after cell site data will inevitably increase the amount of time agents and prosecutors spend on the front end of investigations. The work that goes into getting a search warrant is “appreciably more than a pen register application,” says Leo Cunningham, a former prosecutor and current partner at Wilson Sonsini Goodrich & Rosati. Whereas federal investigators need only show that they have a reasonable expectation that their search will turn up information “relevant to an ongoing criminal investigation” to get the data via a pen register, a warrant requires investigators show probable case and swear out an affidavit outlining the investigation. “In a simple case, we’re talking about 10 more hours of work. In a complicated case, maybe more,’ Cunningham said.

“The government’s position is that you have no reasonable right to privacy when you’re walking around broadcasting where you are,” Cunningham said. “But it’s broadcasting to companies that have billion dollars of equipment to figure out where you are.”

Stanford Law School professor Jeffrey Fisher said he sees the warrantless search of cell site data Illston addressed in Cooper as “a ripening issue,” particularly in light of a case he won in a unanimous decision at the U.S. Supreme Court last year. In Riley v. California, Fisher, the co-director of Stanford’s Supreme Court Litigation Clinic, convinced the court that the Fourth Amendment’s protections against unreasonable searches extend to the contents on a smartphone. “The reality of the modern word is that having a cellphone with you is not exactly a voluntary choice,” he said. “The degree of the privacy interest here just completely outstrips phone numbers dialed.” ​IMAGE: Manuel Ribeiro

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