The Vanishing Distinction Between Real-time and Historical Location Data

Susan Freiwald

Susan Freiwald is a Professor of Law at the University of San Francisco School of Law where she teaches Internet Law, Information Privacy Law, and Criminal Procedure. A former software developer, Freiwald has published and presented widely on the intersection of communications technology and law. She co-wrote the amicus brief for law professors in the Warshak case in the Sixth Circuit (2010), which found a reasonable expectation of privacy in stored e-mail. As amicus curiae, Freiwald argued that the Fourth Amendment requires a warrant for law enforcement access to historical cell site location data before the Third Circuit (2010) and the Fifth Circuit (2012). She received the most votes at the Fifth Annual Privacy Law Scholars Conference (June 2012) for her proposed: “Four Factor Test” in the Government Surveillance Competition: From Jones to Drones. Freiwald advises lawyers and companies on the electronic surveillance laws and has been working for years for legal reform of those laws. She worked closely with the co-authors of CalECPA as an issue expert and academic liaison to secure passage of that landmark law. She received her A.B. and J.D. from Harvard University, magna cum laude and clerked for the Hon. Amalya L. Kearse, U.S. Court of Appeals, Second Circuit.

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2 Responses

  1. Orin Kerr says:

    Susan, does anyone argue that there should be a different standard as a normative matter? My sense is that DOJ wants a uniform standard, too. The disagreement seems to focus on what the uniform standard should be: Should it be reasonable suspicion (law enforcement’s view) or probable cause (the privacy advocates’ view)?

    As for why the standard is different as a purely descriptive matter, it seems to me that this is just a quirk of history in the surveillance statutes. Berger v. New York required a divide that led to two different statutes, T3 and the SCA, which had a different scope; As technology changed, the default position from Rule 41 ended up requiring a warrant for prospective acquisition but the SCA required reasonable suspicion for retrospective access. Etc. etc. But I agree with you that it doesn’t make much sense to require a different standard as a matter of policy for cell-site info.

  2. Susan Freiwald says:

    Orin: thank you for your comment and I’m delighted that you agree that there should be a single standard as a matter of policy.

    I have seen normative arguments that assert that it is more intrusive to have information gathered on a prospective rather than retrospective basis but I haven’t seen compelling support for them. It is much easier to get large amounts of historical information because you don’t have to wait to compile it. Historical information can immediately provide a full picture of someone’s activities and associations that intrudes on privacy, chills speech, and risks pernicious abuses of power.

    I’m not sure how Berger required the divide. I’m not sure that stored communications were on the table in 1967 (Berger) or 1968 (Wiretap Act). ECPA (1986) codified the misguided Smith v. Maryland case (1979 – phone numbers) and US v. Miller (1976 – bank records) and does not clearly apply beyond ordinary carrier business records. If the SCA is read to cover cell site location data(a big stretch – in part because, as the above shows, they may show up in subscriber records only because the DOJ asks for them to be recorded), then that should be found to violate the Fourth Amendment, as Judge Smith found in the Southern District of Tx.