Transmission by a Wireless Carrier of Information Regarding a Cellular Phone User's Physical Location to Public Safety Organizations, 96-33
| Decision Date | 10 September 1996 |
| Docket Number | 96-33 |
| Court | Opinions of the Office of Legal Counsel of the Department of Justice |
| Parties | Transmission by a Wireless Carrier of Information Regarding a Cellular Phone User's Physical Location to Public Safety Organizations |
Neither 47 U.S.C. § 1002(a) nor the Fourth Amendment of the Constitution prohibits a wireless carrier's transmission to local public safety organizations of information regarding the physical location of a caller who uses a cellular telephone to dial the 911 emergency line.
Although 18 U.S.C. §2703 would apparently apply to the carrier's transmission of such location information to public safety organizations, the caller, by dialing 911, has impliedly consented to such disclosure, thus permitting the federal government to require the carrier to disclose such information without a warrant or court order.
MEMORANDUM OPINION FOR THE ACTING ASSISTANT ATTORNEY GENERAL CRIMINAL DIVISIONYou have asked for our opinion as to whether 47 U.S.C. § 1002(a) prohibits a wireless carrier's transmission to local public safety organizations of information regarding the physical location of a caller who uses a cellular telephone to dial the 911 emergency line. In addition, you have inquired as to the constraints, if any, imposed by the Fourth Amendment on such a transmission.[1] As set forth in detail below, we conclude that § 1002(a), by its terms, does not prohibit such transmission of location information. Although you have not inquired as to the applicability of 18 U.S.C. § 2703(c), we conclude that, while die provision would apparently apply to the carrier's transmission of such location information to public safety organizations, the caller, by dialing 911, has impliedly consented to such disclosure, thus permitting the federal government to require the carrier to disclose such information without a warrant or court order. Finally, die Fourth Amendment does not prohibit such transmission born because of the caller's implied consent to die disclosure and because a caller who dials 911 has neither an actual nor a reasonable expectation of privacy with regard to his whereabouts at die time of die call. [ 316]
In its recently issued rule regarding Compatibility of Wireless Services With Enhanced 911 ("E-911"), the Federal Communications Commission (the "FCC") established a timetable for the development and deployment of new technologies through which wireless carriers (cellular telephone companies) will automatically provide a designated public safety answering point ("PSAP")[2] with information regarding the physical location of a caller who dials 911 on a wireless cellular telephone. Commercial Mobile Radio Services, 47 C.F.R. §§20.3, 20.18 (1996).[3]This information will significantly enhance the effectiveness of wireless 911 services by helping emergency service personnel locate the caller and more rapidly and accurately determine where the emergency has occurred.
The implementation and deployment of enhanced 911 features and functions will be accomplished in two phases. In phase one, covered carriers must relay to the PSAP the 911 caller's telephone number and the location of the cell site or base station through which the call originates. See Id. §20.18(d). This information will identify the caller's location only in quite general terms, [4] but will enable emergency service providers to call back if a 911 call is disconnected. See Id. We understand mat the information provided in phase one is currently available to wireless carriers, as it is regularly captured by them as part of their transmission of calls from cellular phones, [5] but some carriers must develop the ability to pass it on to a third party.
A more precise identification of the caller's location will occur in phase two, when the carrier must provide the designated PSAP with the physical location of the mobile unit making the call by longitude and latitude within a radius of 125 meters in 67% of all cases. See Id. § 20.18(e). According to FCC representatives, the more precise location determination required in phase two will occur [ 317] through the development of new technologies enabling the carrier to combine and analyze information regarding the strength, angle and timing of the caller's signal measured at two or more cell sites. A caller's signal, and its strength, are already often picked up by more than one cell site. In addition, many cell sites have sectorized antennas, and, depending upon the angle of the signal's arrival, a particular antenna will pick up the signal, thus informing the carrier what sector of the cell the caller is located in. Finally, each site records the arrival time of a signal. By developing new computer programs, switching technology, protocols and network architecture, the carrier will be able to combine and analyze all of this information—the strength of the signal at each of the cell sites picking up the signal, the sector of a cell from which a signal emanates, and the time that it takes for the signal to arrive at one cell site compared to other sites—to identify more precisely the caller's location.
The Communications Assistance for Law Enforcement Act of 1994 ("CALEA"), among other things, requires telecommunications carriers to ensure that their equipment is capable of permitting the government (pursuant to a court order or other lawful authorization) to access certain "call-identifying information"[6] that is reasonably available to the carrier. 47 U.S.C. § 1002(a)(2). CALEA includes limitations, however, and specifically prohibits telecommunications carriers from providing the government with "information acquired solely pursuant to the authority for pen registers and trap and trace devices (as defined in section 3127 of title 18) . . . that may disclose the physical location of the subscriber (except to the extent that the location may be determined from the telephone number)." Id. § 1002(a)(2)(B).[7] Section 3127 of title 18 () in turn prohibits the installation or use of pen registers and trap and trace devices absent a court order, with the exception of particular uses by providers of electronic or wire communication services.[8] [ 318]
Another provision of ECPA, 18 U.S.C. §2703, "Requirements for governmental access, " sets forth the terms under which carriers may provide governmental entities with information relating to electronic communications. In particular, § 2703(c) provides that a carrier shall only disclose a record or other information pertaining to one of its customers (excluding the contents of communications covered elsewhere in the section) to a governmental entity when the governmental entity obtains a warrant, a court order or the consent of the customer.[9]
By its terms, 47 U.S.C. § 1002(a)(2) does not prohibit a wireless carrier's transmission of physical location information as required by die new FCC rule. As set forth above, § 1002(a)(2) only prohibits carriers from providing physical location information "acquired solely pursuant to the authority [under 18 U.S.C. §3127] for pen registers and trap and trace devices." The physical location of a cellular caller would not be obtained pursuant to legal authority requested and obtained by law enforcement officers as part of a government-initiated investigation, but instead pursuant to the recently issued FCC rule in response to an individual's request for help. Indeed, the cellular caller's physical location would not be determined by use of a pen register or trap and trace device at all, [10] but rather [ 319] by advanced technologies that aggregate and analyze the strength and angle of the caller's signal measured at various cell sites. At the very least, it certainly cannot be said that the caller's physical location would be determined "solely" through use of a pen register or trap and trace device. 47 U.S.C. § 1002(a). Thus § 1002 does not prohibit a telecommunications carrier from transmitting to a public safety organization the physical location information pertaining to a cellular caller required by the FCC rule.[11]
As set forth above, 18 U.S.C. §2703 requires wireless carriers to obtain a warrant, a court order or the consent of the customer before disclosing to governmental authorities information relating to such customer. Although the disclosure of information regarding the physical location of a customer would likely fall within this provision, it is our view that, by dialing 911, the caller impliedly consents to the disclosure of information regarding his location at the time of the call.[12]
The whole purpose of a 911 call is to seek the aid of appropriate government officials in responding to an emergency at a particular place. Typically, that emergency is in the immediate vicinity of the caller—indeed, it often involves the caller himself and thus his exact location—and the whole purpose of the call [ 320] is to inform officials of that location in order for the caller to obtain, and the emergency service officials to provide, help. The caller is the source of the location information needed...
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