CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, October 25, 2021

Smith on Cellphones and the Tracking Device Statute

Stephen W. Smith (Stanford Law School Center for Internet and Society) has posted The Cellphone Donut Hole in the Tracking Device Statute (2021 Federal Courts Law Review (Forthcoming)) on SSRN. Here is the abstract:
 
Legal fictions continue to sprout in American jurisprudence. One of the most recent comes from the First Circuit Court of Appeals, which held in United States v. Ackies that a cellphone cannot be a tracking device as a matter of law. While most legal fictions are supported by some logical rationale, this startling contradiction of everyday experience demands a compelling justification. Yet, as this article hopes to show, there is none.

Using a statutory interpretation tool that Justice Gorsuch has caustically dubbed the “donut hole” canon, the First Circuit finds a tacit exclusion for cellphones in the Tracking Device Statute (TDS), which regulates this form of surveillance. The statute defines “tracking device” broadly and without exclusions—“a mechanical or electronic device which permits the tracking of movement of a person or object.” At the same time the court unduly restricts the proper scope of the TDS, it overextends the reach of the more permissive Stored Communications Act (SCA), a statute never intended to govern ongoing surveillance like real-time cellphone tracking.


This article takes a critical look at the various arguments offered in support of this holding, and finds them wanting. In order to weigh these arguments properly, it will be necessary to recount the evolution of tracking devices in the caselaw since the 1970s, and also the more recent history of the so-called “precise location information” (PLI) warrants endorsed by Ackies. The latter can be seen as a result of opportunistic advocacy, involving four major reversals of official legal positions taken by the DOJ and federal prosecutors in other judicial and legislative venues. The most egregious was prosecutors’ convincing the Ackies court that a TDS tracking device involved “physical placement of a piece of equipment,” while simultaneously urging the opposite position—that remotely installed software could be a tracking device—before ten different appellate courts and dozens of district courts. It is also a cautionary tale of federal courts’ failure to adequately probe superficial legal arguments in support of new surveillance authorities. The full story has not been previously told, to my knowledge.

The article concludes by highlighting some of the adverse consequences should the First Circuit’s holding be followed by other jurisdictions. These include lack of constitutionally-required notice to targets; less transparency and public accountability for this increasingly common form of law enforcement surveillance; and unwitting judicial approval for domestic U.S. law enforcement to engage in cellphone tracking around the globe, in likely violation of international law and in disregard of the negative impact on U.S. foreign relations. Perhaps most worrisome of all is the danger that the SCA will now become the preferred surveillance backdoor, not only for location tracking, but also for other forms of remote electronic monitoring such as wiretaps.

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