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Wireless carriers often receive court orders to assist electronic surveillance by law enforcement agencies. In fact, over the last decade, the number of court orders for electronic surveillance has doubled to some 3,000 per year, according to U.S. court statistics, and increasingly they bear on wireless carriers.
These orders may require the disclosure of mobile subscriber handset locations. Finding the location of a subscriber who is a criminal suspect can be critical to solving a crime. But the appropriate legal process to obtain this privacy-sensitive information is anything but simple. Different courts have imposed different standards on the process, and legal interpretations of the rules can vary state to state.
As a result, carriers are beset by regulatory confusion. Nonetheless, to avoid potential legal liabilities, it is essential that mobile operators keep pace with the shifting landscape around location data. A good place to begin: knowledge of the basics on how “lawful intercept” works in this arena.
A carrier may disclose wireless location data only pursuant to a court order
Once a wireless handset is turned on it routinely registers with the wireless network in a way that identifies its location. When that handset belongs to a criminal suspect, the related location data may be critical to an investigation. It could help diffuse an act of terrorism, prevent a murder, re-arrest a fugitive, or exonerate a suspect whose location is far from the crime scene.
However, a subscriber’s wireless location data is private information, which could cause economic harm or embarrassment if improperly disclosed. Therefore a carrier is prohibited by federal statute from disclosing a subscriber’s location unless law enforcement authorities serve the carrier with valid due process. The instrument of due process must be a court order based on a finding that the LEA has demonstrated sufficient evidence of suspicion to justify an exception from the suspect’s right to privacy. At what point is evidence of suspicion deemed sufficient? That issue is unsettled in the federal and state courts.
‘Hybrid theory’ vs. probable cause
Federal law states that LEAs cannot collect real-time wireless location “solely” through a court order known as a “pen register.” A pen register authorizes lawmen to gather real-time information about a call (e.g. phone numbers dialed, call dates, times, and durations, but not call content such as audio) once a judge is shown proof that the targeted information is “relevant” to a criminal investigation. To supplement the inadequate relevance standard, LEAs established a policy of showing judges a greater quantum of evidence – known as “specific and articulable facts” – tying the targeted evidence to the crime. The idea of combining a pen register request with a showing of specific and articulable facts is called the “hybrid theory.”
Some courts have accepted the hybrid theory when reviewing applications for real-time location orders. When authorizing the collection of “stored” (past) location data, which some consider less privacy-sensitive than real-time location data, these courts accept a showing of specific and articulable facts without the need for a pen register.
Other courts disagree. They believe the only way an LEA can exceed the inadequate relevance standard when seeking real-time location orders is to submit an even greater mass of evidence to the judge and thereby demonstrate “probable cause” (a more than 50% likelihood) that the targeted information relates to a crime. Probable cause is the highest legal standard in the law of electronic surveillance – the constitutional benchmark to wiretap a suspect’s phone calls.
Still other courts have required probable cause showings for both real-time and stored location data.
California weighed in on the wireless location debate last year by proposing the consistent use of warrants. More recently the Supreme Court tightened the due process standards for LEA use of vehicle tracking devices (“beepers”), thus reviving debates over access to location data from cell phones.
Congress may resolve the wireless location debate through legislation
On March 21, Congress introduced two companion bills, H.R. 1312 in the House and S. 639 in the Senate, which would resolve the wireless location dispute. H.R. 1312 would have LEAs meet the probable cause standard for both real-time and stored location. S. 639 is not yet public but presumably tracks the language of H.R. 1312.
The House bill permits exceptions from the probable cause requirement in cases of network maintenance, national security, subscriber consent, location data “readily accessible to the general public,” emergencies, theft and fraud. Civil damages are offered to subscribers whose location data is illegally obtained. It is unclear when, if ever, the legislation will be passed.
Setting a uniform legal standard for wireless location disclosure would benefit industry by clarifying this area of law. Moreover, imposing the top-level standard of probable cause would make it more difficult for LEAs to qualify for location orders and therefore reduce the related compliance burden on carriers. Fewer location orders would also translate to greater subscriber privacy. However, law enforcement may argue that requiring probable cause showings for all location requests would unduly frustrate investigations.
Carriers need specialized experts in this area of law
Until the wireless location debate is resolved, carriers will encounter different judicial approaches to the issue in different jurisdictions. If a carrier receives a location order based on the hybrid theory in a jurisdiction that observes the probable cause standard, it may ask the LEA to have the order revised or ask the judge to reconsider it. Just remember that some judges become resentful when their orders are second-guessed. If the carrier receives a probable cause-based location order in a hybrid-theory jurisdiction there is no violation because LEAs can always choose to exceed the minimum privacy-protection standards.
For mobile operators, responding to location data requests requires specialized expertise – to ensure they assist law enforcement and protect subscriber privacy.
