By Brian L. Owsley[1]

1/26/2013

           The use of cell tower dumps is a striking example of the changes in investigation forced by rapid technological change, and the attendant privacy issues that arise. Two recent bank robbery cases in federal court provide good examples of law enforcement’s increasing use of cell tower dumps, a relatively obscure investigatory tool.  “A tower dump allows police to request the phone numbers of all phones that connected to a specific tower within a given period of time.”[2] While investigating crimes which were likely coordinated using cell phones the cell tower dump yields information regarding the specific locations and times when perpetrators likely would have used their phones.  Once law enforcement officials have this cell tower data, they then analyze the results to look for repeat telephone numbers that hit towers near multiple crime scenes. 

           In United States v. Duffey,[3] the United States District Court for the Northern District of Texas addressed a cell tower dump concerning an FBI investigation of “a group of armed robbers dubbed the ‘Scarecrow Bandits’ that had violently robbed more than twenty banks in the Dallas area.”[4]  During its investigation, the FBI utilized cell tower dumps to obtain cell phone records for the times and areas of the Scarecrow Bandits’ robberies.[5]  Specifically, these records established that the cell phones of two defendants were used near cell towers around the time of each of the robberies and that cell phones of other Scarecrow Bandits members were linked to these two defendants as well as cell towers near the banks that were robbed.[6]

           Similarly, in the United States District Court for the Southern District of Texas, an assistant United States Attorney filed an application for a court order of disclosure of telecommunications records in July 2011.[7]  That application sought for AT&T, Cricket, Sprint/Nextel, T-Mobile, and Verizon Wireless to be required to provide the FBI with cell phone records for four specific locations.  Each location was identified by the address of a bank with a specific date and a fifteen minute interval.  The assistant United States Attorney certified that the FBI was investigating multiple bank robberies and made the request pursuant to 18 U.S.C. § 2703(c) and 18 U.S.C. § 2703(d).  When the reviewing magistrate judge questioned the authority to obtain the requested information pursuant to § 2703, the government no longer pursued the application.  Indeed, the application was withdrawn and the case number reassigned to another action. 

           Luis Soto and his brother Felix Soto were indicted by the United States District Court for the District of Connecticut for a series of bank robberies.  A federal magistrate judge had issued an order requiring cell phone companies to provide the government various records, including cell site location data.  To obtain such an order, the government files an application pursuant to 18 U.S.C. § 2703(d), providing the court with “specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal information.”[8]  As courts have noted, the “specific and articulable facts” standard creates a lesser burden than the probable cause standard required for a warrant.[9]  The lesser standard makes this method of electronic surveillance very attractive to the government.

           Moreover, in the search for bank robbers, this method enables the government to gather data regarding activity around a number of banks that have been robbed using a similar methodology.  Thus, law enforcement officials can gather a large of pool telephone numbers that were near the scene of the crime for various reasons.  When compared to the other pools of numbers gathered regarding other bank robberies, the hope is that there will be a couple of numbers distilled that provide solid leads and suspects involved in the robberies.  For example, in Duffey, “[t]hese extensive records show Defendants Hewitt and Duffey’s cellular telephones used those cell towers at or around the time of each robbery.”[10]

           Luis Soto filed a motion to suppress the evidence related to this cell tower dump arguing that the government should have been required to obtain a warrant after establishing probable cause.[11]  The district judge denied the motion to suppress finding that a warrant was unnecessary.[12]

            What the government does not tell you is that in order to obtain these numbers to develop suspects, the investigating agents must obtain the telephone numbers as well as the personal information of a significant number of innocent individuals.  That personal information includes people’s name, address, the method of payment for the cell phone, and a list of telephone calls made and received, including the time that the calls were made and the length of the calls.[13]  For example, in Soto, the government received through the § 2703(d) order, 180 different cell phone numbers with accompanying records.[14]  In other words, the records of 179 persons unrelated to the criminal investigation were provided to the government. 

            Lest you think that these few examples are the only ones, rest assured they are not.  Other courts, including state courts, are authorizing such electronic surveillance by both federal and state law enforcement authorities.  Of course, the use of a cell tower dump for a bank robbery is not the only scenario in which the government seeks such information.  The American Civil Liberties Union recently issued a report documenting widespread electronic surveillance, including cell tower dumps, by law enforcement officials around the country.[15]  Indeed, telecommunications providers are very supportive of law enforcement’s requests because the major companies charge for providing information responsive to these requests.[16]

            The concern that I have with the government’s use of cell tower dumps is not so much the technology itself.  Indeed, the use of cell tower dumps to investigate bank robberies presents a reasonable and potentially effective investigative tool to solve these crimes.  Ultimately, however, I am more concerned about the 179 innocent people who were swept up in the Soto investigation.  Even if they were never contacted by agents investigating the bank robberies, their information was provided and their privacy was compromised.  Indeed, the telecommunication companies quite likely provided the government with each of these individual’s names, addresses, call history, service history, telephone number, means and source of payment, social security number.[17]

            Additionally, I am concerned about the providing of this information by such a low standard as outlined § 2703(d).  Given the intrusive nature of the information provided and the fact that it can impact so many innocent individuals, I think that any such orders should satisfy the probable cause standard for the issuance of warrants as mandated by the Fourth Amendment.[18]  The probable cause standard is not so onerous that law enforcement officials should not be able to meet the standard in most criminal investigations.  At the same time, it affords both innocent cell phone subscribers and criminal suspects the protections mandated by the Constitution.