“The Court finds that a tower dump is a search and the warrant law enforcement used to get it is a general warrant forbidden under the Fourth Amendment,” ruled Judge Miranda M. Du of the U.S. Ninth Circuit Court of Appeals on April 11. The historic ruling is the first time the Ninth Circuit has ruled on the constitutionality of cell tower dumps, a controversial surveillance tactic that has been causing widespread outrage among privacy watchdogs and legal pundits. But the court ruling affirming the use of evidence gleaned from such a search diminishes the subtleties of safeguarding constitutional rights against law enforcers.
Cell tower dumps, which are more used than any other tool by law enforcement, is a request that phone companies dump information on all the phones on a given tower within a certain time frame. The information dumped is phone numbers and locations, essentially a snapshot of everyone in one place. Although effective in solving crime, the technique has been denounced as too indiscriminate in nature, catching information on possibly thousands of innocent citizens. In the High Country Bandits case, another example, police used a tower dump to apprehend two bank robbers by digging through more than 150,000 phone numbers. The amount of information drawn shows the technique’s invasion of privacy.
The Nevada case belongs to Cory Spurlock, who was charged with conspiracy to commit murder-for-hire and selling pot. Police used a tower dump to connect Spurlock’s cell phone with the crime location. Information of 1,686 people was obtained using the warrant dump, and most did not have the option but not to provide their location information to their wireless provider.
Judge Du’s decision falls within wider legal arguments about enforcing the Fourth Amendment in the modern era. The amendment against unreasonable searches and seizures has been attacked as much more is now technologically possible. The Carpenter c. United States Supreme Court case of 2018 is a landmark precedent. In Carpenter, the Court had decided that the police had abused the Fourth Amendment in obtaining seven days’ worth of cell site location information without a warrant. Carpenter did not extend to hold and decide on the constitutionality of tower dumps, however, leaving lower courts to struggle with the issue.
The Nevada case is far from being an isolated case. One judge for a federal Mississippi court has also recently decreed that tower dumps were unconstitutional because they are basically indistinguishable from geofence warrants. Geofence warrants, which involve compelling the GPS monitoring of all accounts in an area over a specific time period, have also been contentious before the law. In United States v. Smith in the Fifth Circuit, geofence warrants were deemed unconstitutional general warrants based on the premise adopted by the Mississippi court for tower dumps. The majority of the courts, however, such as Nebraska and Delaware courts, have determined that tower dumps are not Fourth Amendment searches with minimal consistency among jurisdictions.
Even assuming the consideration of tower dumps unconstitutional, Judge Du would not exclude the evidence obtained in the Spurlock case. She applied the “good faith exception,” wherein police believed they were acting in accordance with the law and thus the evidence will be admissible. “Because the Court appears to be the first court within the Ninth Circuit to reach this conclusion and the good faith exception otherwise applies, the Court will not order any evidence suppressed,” Du said. This balancing act is a sign of the tension between setting legal precedent and reacting to contemporary pragmatism in criminal investigations.
The effect of these choices is far-reaching beyond individual cases. Privacy activists are certain that bulk surveillance techniques such as tower dumps undermine constitutional protections and result in unbridled government power. The Brennan Center for Justice cautioned that such practices could result in “a too permeating police surveillance,” contrary to the spirit of the Fourth Amendment. Legal experts observe, however, that the thought is to have specific use guidelines for using online data in investigations due to the fact that technologies such as cell phones, GPS tracking, and wearables give even closer and fuller depictions of human existence.
From such cases fighting their way through appellate levels, they will ultimately wind up before the Supreme Court and making justices address the still-spectering issues over tower dumps. The Carpenter Court ruling signaled openness to evolving Fourth Amendment doctrine to meet emerging technology but in incomplete steps did not completely respond to most of the questions posed. If the Supreme Court does accept the case, its decision would redefine online privacy boundaries and set a precedent for courts to weigh new surveillance methods.
To date, the Nevada ruling is a giant leap in addressing the legal and ethical shortcomings of bulk surveillance. It discusses the importance of the judiciary finding the correct balance between privacy of intimacy and scope of information, the methods used to obtain it, and the retroactive intelligence it provides to law enforcement agencies. As can be seen from the example of Judge Du’s decision, the way to achieve the balance between public security and individual privacy is fraught with difficulties of achieving the balance between functional necessity and constitutional values.
