Bloomberg Law
Oct. 7, 2016, 8:06 PM

Technology and Shifting Privacy Expectations (Perspective)

Craig Silliman

Editor’s Note: The author of this post is a top lawyer in the telecommunications industry.

By Craig Silliman, Executive Vice President, Public Policy and General Counsel, Verizon

At Verizon, we focus on maintaining the premier wireless network in the country. That means we spend a lot of time working to increase the capacity of the network to ensure that it keeps ahead of the needs of our customers.

As a lawyer, however, during these network planning discussions, I lately have found my mind turning to thoughts of location information and the third-party doctrine. Did I lose you already? Let me explain.

Over the past couple of years, there has been discussion and litigation about what legal process should be required for law enforcement to obtain information about the historical location of a customer’s mobile device from a wireless carrier. The debate is about the Fourth Amendment and whether a probable cause warrant or a court order is necessary. Both warrants and orders are signed by a judge, but law enforcement must meet a higher standard in order to obtain a probable cause warrant. Most courts have held that a court order is sufficient, but many privacy advocates and some judges feel that the higher standard of a warrant is more appropriate.

To understand why this has become a contentious issue, let me first provide a bit of background about wireless networks, as well as the evolution of Fourth Amendment cases.

When your mobile device is turned on, its radio constantly communicates with antennae on your wireless carrier’s cell sites. This helps the network efficiently route the calls, texts or data you send and receive. Each cell site, regardless of its size, usually has three sectors, each representing a 120 degree slice of a pie.

When a Verizon customer uses her device — for a call, text message, or data session — the network records the cell site and the 120 degree sector of that cell site used. The network also estimates the approximate distance the device is from the cell site.

Like other carriers, Verizon retains this information to troubleshoot, maximize network efficiency, and for other business purposes. We keep cell site and sector information that we need for these business purposes for one year, while we keep other location information, like multiple location points collected during a data session and the approximate distance a device is from a cell site for eight days.

We take our customers’ privacy very seriously, of course, and protect this information carefully. But all companies, including Verizon, have a legal obligation to provide location information to law enforcement in response to valid warrants and orders.

Warrants and orders? Yes, different jurisdictions in the U.S. have different legal standards and this is a question that courts are grappling with.

This Spring, two federal appellate courts ruled that the government can obtain historical location information with just an order. In doing so, these decisions agreed with two previous appellate court decisions from other parts of the country. All four courts concluded that the government did not need to meet the higher burden required under the Fourth Amendment for a probable cause warrant due to a principle called the “third-party doctrine.”

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Stated simply, in two cases in the 1970s, the U.S. Supreme Court held that when a customer voluntarily conveys information to a third party, she has no expectation of privacy in that information, so a warrant is not required. One of those cases involved the telephone numbers a customer dialed: the Court held that a warrant was not needed because a person making a telephone call revealed the numbers dialed to the phone company and so had no expectation of privacy in those numbers.

The question that these four recent cases presented was whether a customer has a reasonable expectation of privacy regarding her location information. After all, like the number she dials, she conveys her location to the carrier when her device connects to the network. But is it alike?

Some argue that our expectation of privacy is different when we make a call, affirmatively dialing and thereby sharing that phone number with our carrier, than when we reveal location information to our carrier simply because our device is connected to its network. They further maintain that customers are not always voluntarily or affirmatively disclosing the locations of their cellphones: consider, for example, that the network identifies a cellphone’s location to send a call to that phone even if the customer does not answer it.

Nonetheless, all four appellate courts concluded that the third party doctrine, as articulated by the Supreme Court, applied since the defendants in each of those cases had no expectation of privacy with regard to location information that they had voluntarily conveyed to their carrier through use of its network. Thus, law enforcement could obtain that location information with the lower standard of a court order.

Here’s why our network planning discussions cause me to think about these cases. You see, in all four cases, the location information was gathered by law enforcement from wireless carriers back in 2010 and early 2011 based on telephone calls (and, in one case, text messages). None of the four cases involved location information generated when a device was used to access data, such as checking email, watching a video, or using apps.

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The beginning of the decade may not seem like long ago, but think about it in technology terms. The first iPhone had come out only three years before. Wireless carriers now have over three times the number of smart phones on their networks than they did at the start of the decade. And, customers consume more than twenty times more data now than they did in 2010. Our network collects multiple location points during a data session. In all, the dramatic increase in smart phones and data usage means there is also a sizeable increase in customer location information generated by our network.

Just as importantly, the number and types of cell sites that make up our network has changed significantly in order to handle the exponential growth in usage by our customers. In 2010, our network was comprised mostly of macro cell sites, or towers, with antennae that covered larger areas. In recent years, in order to fill in coverage gaps between the larger towers and make our network even more dense, diverse and reliable, we have added smaller cell sites. And our customers often use “femto cells” or “network extenders” at their homes or business locations to further improve coverage, especially indoors.

Today’s smaller cell sites generally have smaller ranges. While most macro sites will have a range of three to ten miles (though some may have ranges as small as half a mile in dense urban areas or more than 15 miles in rural areas), a small cell site will generally have a range less than a mile, perhaps just hundreds of feet, depending on the circumstances. A femto cell may have a cell radius of between 100 feet and 500 feet. Knowing that an individual’s cellphone is within a few hundred feet of a cell obviously is more precise than knowing that it is within a few miles.

All of these changes – particularly, the surge in our customers’ use of data and the fact that many of today’s cell sites have smaller ranges – mean that our network now collects more voluminous and more precise location information than when, in 2010 and 2011, law enforcement obtained the location information that gave rise to the four appellate cases described earlier.

This increase of more, precise location data raises an interesting question: at what point does the volume and precision of the location information conveyed to the network in the ordinary use of mobile devices differ so materially from the dialed numbers of 1970s wireline phones that our expectation of privacy in that information changes, as well?

The defendants in the two location information cases that were decided this Spring are asking the Supreme Court to review their cases and the third-party doctrine. I think it’s a matter of time before the Court takes a case like this and when it does, I hope that it takes into account how quickly technology — including the volume and precision of location information — is changing.

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