In 1986, Congress passed the ECPA123 with the belief that it struck “a fair balance between the privacy expectations of American citizens and the legiti-mate needs of law enforcement agencies.”124 The ECPA defines the criteria that the government must meet before it can monitor electronic communications in various ways. Specifically, the statute enumerates four methods for the gov-ernment to gain information from electronic communications: wiretaps,125 tracking devices,126 pen registers and trap and trace devices,127 and stored elec-tronic communications.
A “tracking device” is defined as “an electronic or mechanical device which permits the tracking of the movement of a person or object.”129 Under this defi-nition, the ECPA does not require that the device be designed specifically as a tracking device. Rather, any device that allows tracking, whether or not that was the purpose of the device, is governed by the ECPA.130 Thus, this language left open the possibility that a cell phone could be a tracking device, even if this possibility was not foreseeable when the law was passed.131 Indeed, be-cause the ECPA allowed for this possibility, cell phones are used as tracking devices today.132 Accordingly, the issue the courts must determine is under what circumstances and with what evidentiary standard the government should be granted access to real-time cell site tracking information
In addition to the access granted under the ECPA’s tracking device section, the government has argued in a number of cases134 that it is entitled to real-time tracking data based on another section of the ECPA, the Stored Communica-tions Act (“SCA”).135 The SCA allows the government to obtain the contents of a wire or electronic communication being stored in either electronic storage or a remote computing service.136 More specifically, section 2703(c) grants the government access to “records concerning electronic communication ser-vice.”137 Unlike other parts of the ECPA, the SCA allows disclosure of this information with a comparatively low standard of “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 investigation.”138 The higher probable cause standard is not required—and the Fourth Amendment is not implicated—because the information the cell service provider gathered for its “own legitimate business purposes,” belongs to the carrier, and not the sub-scriber.
