IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
__________________________________________________________________
No. 45 MAP 2020
__________________________________________________________________
COMMONWEALTH OF PENNSYLVANIA
Appellee,
v.
ALKIOHN DUNKINS
Appellant.
__________________________________________________________________
BRIEF OF AMICI CURIAE AMERICAN CIVIL LIBERTIES UNION,
AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA, AND THE
ELECTRONIC FRONTIER FOUNDATION IN SUPPORT OF
APPELLANT ALKIOHN DUNKINS
__________________________________________________________________
Appeal from the order of the Superior Court dated February 12, 2020, No. 1003
EDA 2019, affirming the Judgment of Sentence of the Northampton County Court
of Common Pleas, Criminal Division, dated January 4, 2019 at No. CP-48-CR1577-2017

Andrew Christy
Pa. I.D. No. 322053
American Civil Liberties Union
of Pennsylvania
P.O. Box 60173
Philadelphia, PA 19102
(215) 592-1513 x138
achristy@aclupa.org
Counsel for Amici Curiae
(Additional Counsel Listed on Following Page)

 On the Brief:
Jennifer Lynch
Andrew Crocker
Electronic Frontier
Foundation
815 Eddy Street
San Francisco, CA 94109
(415) 436-9333

Jennifer Stisa Granick
American Civil Liberties
Union Foundation
39 Drumm Street
San Francisco, CA 94111
(415) 343-0758

Nathan Freed Wessler
Brett Max Kaufman
American Civil Liberties
Union Foundation
125 Broad Street, 18th Fl.
New York, NY 10004
(212) 549-2500

 TABLE OF CONTENTS
TABLE OF AUTHORITIES................................................................................... iii
STATEMENT OF INTEREST OF AMICI CURIAE ................................................ 1
SUMMARY OF ARGUMENT................................................................................. 1
ARGUMENT ............................................................................................................ 3
I.

II.

III.

Wi-Fi–Derived Location Information Can Provide Law Enforcement
with Precise and Voluminous User Location Data .................................... 3
A.

Wi-Fi Networks Collect User Devices’ Information as They
Connect to the Internet ..................................................................... 4

B.

Wi-Fi Networks Can Log Device Locations as Their Users
Move Throughout Physical Space .................................................... 4

C.

Wi-Fi–Derived Location Information Can Tie Users’ Devices
to Users’ Identities ............................................................................ 8

D.

Warrantless Law Enforcement Use of Wi-Fi–Derived Location
Information Poses Serious Concerns for All Americans .................. 9

Warrantless Acquisition of Wi-Fi–Derived Location Information Violates
the Fourth Amendment ............................................................................ 11
A.

The Data Is Detailed and Pervasive................................................ 12

B.

The Data Collection Is Nearly Ubiquitous ..................................... 14

C.

The Data Permits Retrospective Searches ...................................... 15

D.

Wi-Fi–Derived Location Tracking Grants Police an
Unprecedented Power ..................................................................... 15

Using Wi-Fi Access Point Data to Identify All People in a Particular
Location Is Unconstitutional .................................................................... 18

i

 IV.

The Third-Party Doctrine Does Not Vitiate the Privacy Rights at
Issue in this Case ...................................................................................... 23

V.

Moravian’s Student Handbook Does Not Defeat Appellant’s Reasonable
Expectation of Privacy in His Location Data .......................................... 25

CONCLUSION ....................................................................................................... 30
CERTIFICATE OF COMPLIANCE WITH WORD LIMIT ................................. 32
CERTIFICATE OF COMPLIANCE ...................................................................... 32
CERTIFICATE OF SERVICE ................................................................................ 32

ii

 TABLE OF AUTHORITIES
CASES
Byrd v. United States,
138 S. Ct. 1518 (2018) ......................................................................................... 28
Carpenter v. United States,
138 S. Ct. 2206 (2018) ..................................................................................passim
Commonwealth v. Almonor,
120 N.E.3d 1183 (Mass. 2019) ............................................................................ 17
Commonwealth v. DeJohn,
403 A.2d 1283 (Pa. 1979) .................................................................................... 23
Commonwealth v. Dunkins,
229 A.3d 622 (Pa. Super. Ct. 2020) ..............................................................passim
Commonwealth v. Sodomsky,
939 A.2d 363 (Pa. Super. Ct. 2007) ..................................................................... 29
Coolidge v. New Hampshire,
403 U.S. 443 (1971) ............................................................................................. 22
Groh v. Ramirez,
540 U.S. 551(2004) .............................................................................................. 19
In re Search of: Info. Stored at Premises Controlled by Google,
No. 20 M 392, __ F. Supp. 3d __,
2020 WL 4931052 (N.D. Ill. Aug. 24, 2020) ....................................................... 22
In re Search of: Info. Stored at Premises Controlled by Google, as Further
Described in Attachment A,
No. 20 M 297, 2020 WL 5491763 (N.D. Ill. July 8, 2020).................................. 22
J.I. v. N.J. State Parole Bd.,
155 A.3d 1008 (N.J. 2017) ............................................................................... 1, 24
Kyllo v. United States,
533 U.S. 27 (2001) ......................................................................................... 13, 15

iii

 Medlock v. Trustees of Ind. Univ.,
738 F.3d 867 (7th Cir. 2013) ................................................................................ 30
Packingham v. North Carolina,
137 S. Ct. 1730 (2017) ........................................................................................... 1
People v. Weaver,
909 N.E.2d 1195 (N.Y. 2009) .............................................................................. 18
Riley v. California,
573 U.S. 373 (2014) ............................................................................................. 20
Smith v. Maryland,
442 U.S. 735 (1979) ....................................................................................... 23, 29
Stanford v. Texas,
379 U.S. 476 (1965) ............................................................................................. 20
State v. Muhammad,
451 P.3d 1060 (Wash. 2019) .......................................................................... 17, 18
Steagald v. United States,
451 U.S. 204 (1981) ............................................................................................. 20
Tracey v. State,
152 So. 3d 504 (Fla. 2014) ................................................................................... 17
United States v. Adkinson,
916 F.3d 605 (7th Cir. 2019) ................................................................................ 29
United States v. Jacobsen,
466 U.S. 109 (1984) ............................................................................................. 30
United States v. Jones,
565 U.S. 400 (2012) ......................................................................................passim
United States v. Karo,
468 U.S. 705 (1984) ....................................................................................... 13, 17
United States v. Knotts,
460 U.S. 276 (1983) ............................................................................................. 21

iv

 United States v. Miller,
425 U.S. 435 (1976) ............................................................................................. 23
United States v. Owens,
782 F.2d 146 (10th Cir. 1986) .............................................................................. 29
United States v. Simons,
206 F.3d 392 (4th Cir. 2000) ................................................................................ 30
Ybarra v. Illinois,
444 U.S. 85 (1979) ............................................................................................... 22
CONSTITUTIONS
U.S. Const. amend. IV......................................................................................passim
P.A. Const. art. I, § 8 ........................................................................................... 2, 23
OTHER AUTHORITIES
At A Glance, Pennsylvania State University ............................................................. 9
Bob Fernandez, In Comcast’s Hometown, the Chasm Between Internet Haves
and Have-Nots Looks Intractable, New Census Data Shows, Phila. Inquirer
(Dec. 10, 2018) ..................................................................................................... 11
Comcast W. Pa., Comcast Installs WiFi Hotspots at Nine City of Pittsburgh
Parks....................................................................................................................... 9
Eric Escobar, How Does Wi-Fi Work?, Sci. Am. (July 15, 2015) ............................ 2
Facts, University of Pennsylvania............................................................................. 9
First Use Configuration and Device Activation: iPhone, T-Mobile ....................... 24
Jennifer Valentino-DeVries, Tracking Phones, Google Is a Dragnet for the
Police, N.Y. Times (Apr. 13, 2019) ..................................................................... 22
Jorunn D. Newth, Which Building Materials Can Block Wi-Fi Signals?,
Eye Networks ......................................................................................................... 5

v

 Julie Zeglen, Philly’s Digital Divide Is Growing, But At Least
We Got Some Free Wi-Fi Kiosks, Generocity (Dec. 11, 2018) ............................ 11
LinkNYC ................................................................................................................. 10
Monitoring Wireless Networks through Log Checking, Who’s On My WiFi........... 4
Norton, The Dos and Don’ts of Using Public Wi-Fi ................................................. 8
NYC.gov, Mayor de Blasio Announces Public Launch of LinkNYC
Program, Largest and Fastest Free Municipal Wi-Fi Network in the World
(Feb. 18, 2016) .................................................................................................... 10
Pew Res. Ctr., Mobile Fact Sheet (June 12, 2019).................................................... 4
Privacy Policy, Google............................................................................................ 27
Residence Life and Housing, Moravian College ..................................................... 13
Sprint/T-Mobile Privacy Policy, T-Mobile ............................................................. 27
Student Handbook, Moravian College .................................................................... 25
Use Bluetooth and Wi-Fi in Control Center, Apple.................................................. 7
Victor Fiorillo, Here’s Where to Get Free Wi-Fi in Philly, Philadelphia
(Feb. 18, 2020) ...................................................................................................... 9
Welcome to AMOS, Access Moravian Online Servs. .............................................. 24
What is the Typical Range of a Wireless LAN?, SpeedGuide.net ............................. 5
Wikipedia, MAC Address .......................................................................................... 4
Wikipedia, Municipal Wireless Network................................................................. 10
Wikipedia, Wireless Access Point ............................................................................. 4
Wireless Internet Hotspots, SEPTA .......................................................................... 9
Wireless Network Capacity, Actiontec...................................................................... 6
Xfinity WiFi ............................................................................................................ 10

vi

 STATEMENT OF INTEREST OF AMICI CURIAE
The American Civil Liberties Union (“ACLU”) is a nationwide, nonprofit, non-partisan organization dedicated to defending the civil liberties and civil
rights guaranteed by the Constitution, and the ACLU of Pennsylvania is a state
affiliate. The ACLU was counsel in Carpenter v. United States, 138 S. Ct. 2206
(2018).
The Electronic Frontier Foundation (“EFF”) is a member-supported, nonprofit civil liberties organization that works to protect free speech and privacy
rights in the online and digital world. EFF served as amicus in numerous cases
addressing Fourth Amendment protections for cell phone location information,
including Carpenter.1
SUMMARY OF ARGUMENT
Cell phones have become “such a pervasive and insistent part of daily life
that carrying one is indispensable to participation in modern society.” Carpenter v.
United States, 138 S. Ct. 2206, 2220 (2018) (quotation marks and citation omitted).
That is because the Internet plays an essential role in modern life. Packingham v.
North Carolina, 137 S. Ct. 1730, 1735–36 (2017); J.I. v. N.J. State Parole Bd., 155
A.3d 1008, 1012 (N.J. 2017). But accessing the Internet often requires using WiFi, especially for students, low-income people, and people traveling away from

1

No other person or entity paid for or authored this Brief.

1

 home. Wi-Fi use generates precise location data that can reveal the most intimate
details of people’s lives, as well as identify all the people present in a particular
space at a particular time, as campus police did in this case.
That capability poses a grave threat to privacy and constitutes a sweeping
expansion of government power. Just as with the historical cell phone location
records at issue in Carpenter, there is a reasonable expectation of privacy in the
Wi-Fi–derived location tracking data in this case. A private terms of service or
acceptable use policy does not diminish this privacy expectation as to law
enforcement. Consequently, law enforcement’s acquisition of Wi-Fi–derived
location information without a warrant violates the Fourth Amendment.2 .
In this case, after two men robbed a Moravian College student’s dorm room
in the early morning hours of February 2, 2017, police obtained logs showing all
devices that were connected to the residence hall’s Wi-Fi access points during the
relevant time period (between 1:30 a.m. and 2:30 a.m.).3 Officers cross-referenced
those logs with other records to identify three devices present in the residence hall
that night that belonged to non-resident students. Of those three devices, two

2

Wi-Fi–derived location data is also protected under Article I, Section 8 of the State
Constitution, which protects privacy to an even greater degree than does the Fourth Amendment.
P.A. Const. art. I, § 8.
3

Wi-Fi is a radio-based networking technology that is typically used to connect portable devices,
such as phones, tablets, and laptops, to the Internet. See Eric Escobar, How Does Wi-Fi Work?,
Sci. Am. (July 15, 2015), https://www.scientificamerican.com/article/how-does-wi-fi-work/.

2

 belonged to women. The only account belonging to a non-resident male was that of
Mr. Dunkins. (R.R. 410–411a.) Officers then searched the logs of every Wi-Fi
access point on campus to compile a record of Mr. Dunkins’ movements over a
five-hour period on the night of the robbery. (R.R. 62a.)
This Court should hold that campus police violated the Fourth Amendment
when they warrantlessly obtained Wi-Fi location data placing Mr. Dunkins and
other students in the Hassler dorm rooms that evening and when they tracked Mr.
Dunkins’ movements over a five-hour period. Moreover, although police made no
attempt to even try to get a warrant in this case, any attempt to do so as to the first
search (locating all students in the residence hall) would have implicated serious
questions underlying the Fourth Amendment’s rejection of general warrants and
overbroad searches. Because police infringed on reasonable expectations of
privacy, the evidence should be suppressed.
ARGUMENT
I.

Wi-Fi–Derived Location Information Can Provide Law Enforcement
with Precise and Voluminous User Location Data.
Because of the way that devices like cell phones, tablets, and laptops

connect to wireless Internet networks, those devices generate precise information
about users’ current or historical locations. When these kinds of Wi-Fi networks
are operated by entities like colleges, businesses, or city governments, those
entities thereby obtain a log of location information about any user accessing them.
3

 This information, often timestamped down to the second, provides a detailed
picture of where a given Wi-Fi user has been in space and time.
A. Wi-Fi Networks Collect User Devices’ Information as They Connect
to the Internet.
An overwhelming majority of Americans now own smartphones and connect
these phones to Wi-Fi networks in their homes, offices, and in public spaces to
browse the Web, connect with friends over social media, play games, and send text
messages or e-mail.4 Wi-Fi networks use radio technology to connect user devices
like cell phones, tablets, and laptops to physical devices called Wi-Fi “access
points,” which in turn connect to the Internet.5 The radio contained within each
phone, laptop, or other device is manufactured with a unique identifier called a
“MAC address,” which is a code made up of letters and numbers.6 Access points
use these unique codes to identify and log information about which devices are
communicating with them at any given time.7
B. Wi-Fi Networks Can Log Device Locations as Their Users Move
Throughout Physical Space.

4

See Pew Res. Ctr., Mobile Fact Sheet (June 12, 2019),
https://www.pewresearch.org/internet/fact-sheet/mobile/.
5

See Wikipedia, Wireless Access Point, https://en.wikipedia.org/wiki/Wireless_access_point.

6

See Wikipedia, MAC Address, https://en.wikipedia.org/wiki/MAC_address.

See Monitoring Wireless Networks through Log Checking, Who’s On My WiFi,
https://whoisonmywifi.com/more-info/additional-info/monitoring-a-wireless-network/logchecking/. In this case, the Wi-Fi network logs provided to police identified devices by users’
unique usernames instead of the devices’ underlying MAC addresses. See Trial Ex. 2, at 8–12.
7

4

 Wi-Fi networks can be used to track users’ location and movements through
physical space. Because network administrators know where access points are
physically located within a Wi-Fi network, and because networks log the exact
time and date each device connected to each access point, administrators also know
that the devices connecting to those access points are in the nearby vicinity and
know when they connected.
While a home network may rely on only a single access point, a larger
network—covering an office building, college campus, neighborhood, or even an
entire city—must deploy multiple access points to ensure users’ seamless
connections to the Internet. That is because the typical range of a Wi-Fi access
point is approximately a few hundred feet, under perfect conditions.8 Additional
access points are necessary in larger geographic areas, as well as in dense indoor
areas, like offices or dormitories, because heavy materials like concrete, cinder
block, and brick can block Wi-Fi radio waves.9 Further, each access point can only

8

See What is the Typical Range of a Wireless LAN?, SpeedGuide.net,
https://www.speedguide.net/faq/what-is-the-typical-range-of-a-wireless-lan-330.
9

See Jorunn D. Newth, Which Building Materials Can Block Wi-Fi Signals?, Eye Networks,
https://eyenetworks.no/en/wifi-signal-loss-by-material/; see also R.R. 401a.

5

 support a limited number of devices, so a network supporting a large number of
devices, as in a college dorm, requires many access points to avoid congestion.10
The more access points a network has within its geographic area, the more
detailed and specific the location information it can generate. In this case,
Moravian densely blanketed the campus, an area spanning about six blocks, with
over 1,100 access points to ensure students receive signal anywhere on campus.
(R.R. 51a.) The College placed access points in classrooms and dining halls, as
well as outside buildings—basically, “anywhere a human being who wants to
access the wireless [I]nternet will be,” (R.R. 54a), including up to eighty to ninety
access points each in certain residence halls, yielding one access point for
approximately every other dorm room. (R.R. 73a–74a.)
When a device is connected to a Wi-Fi network that uses multiple access
points, that device will automatically “roam” between access points,
communicating with whichever access point has better signal strength or less
interference at any given point in time. Once the device connects to the Wi-Fi
network for the first time, switching happens automatically. This happens even
when a device is not actively in use, as devices continuously maintain an
association with the closest Wi-Fi access point. If a user moves from the first floor

10

See Wireless Network Capacity, Actiontec, https://www.actiontec.com/wifihelp/wirelessnetwork-capacityhow-many-devices-can-connect-wifi-network/.

6

 to the second floor of a building, for example, their phone will likely switch from
communicating with an access point on the first floor to communicating with one
on the second floor. The Wi-Fi network logs each of these connections, allowing
administrators to track when the device was in the building and where it travelled
while it was there.11
Once a device connects to a Wi-Fi network, a user’s location information is
collected automatically. On many such systems, including Moravian’s, users need
only log in once for their phones to connect to the network every time they are in
range, in perpetuity. This continuous data collection occurs even if a user leaves
the coverage network and returns later; once connected, a user’s device
automatically re-joins the Wi-Fi network without having to log in, view terms of
service, or accept network terms. (R.R. 53a, 404a.) This allows a network like
Moravian’s to track a student’s location and movement across campus over an
entire day or even over their entire tenure at the College. (R.R. 70a.) In an area
with complete Wi-Fi coverage, like Moravian, the only time that records of users’
location will not be produced is when the user deliberately turns off Wi-Fi.12

11

Location tracking is also possible across networks. Investigators would just need to obtain
access point logs from each network administrator.
12

Many devices automatically turn Wi-Fi back on, even if a user has turned it off. See, e.g., Use
Bluetooth and Wi-Fi in Control Center, Apple, https://support.apple.com/en-us/HT208086
(noting iPhones and iPads will automatically turn on again if “[y]ou walk or drive to a new
location” or “[i]t's 5 AM local time.”)

7

 C. Wi-Fi–Derived Location Information Can Tie Users’ Devices to
Users’ Identities.
It is a short step from obtaining location information about devices using the
network to identifying the device user. Some Wi-Fi networks allow users to
connect without registering their identifying information. But today many require
user authentication, meaning that users must create a username and password, or
otherwise authenticate their devices with the network.13 When users connect to
“authenticated” Wi-Fi networks, such as Moravian’s, the network data can connect
a particular device to a particular person.
Many different entities use authenticated Wi-Fi networks, ranging from
hotels (where users must enter their room numbers to connect) to municipal Wi-Fi
networks like New York City’s LinkNYC Program (which generally require users
to enter their email addresses when they first connect). Colleges and universities,
like Moravian, often host authenticated networks that require students, faculty, and
staff to enter their college-provided username and password. (See R.R. 51a–52a,
404a.) Administrators of authenticated networks are not only able to identify which
devices are connected to Wi-Fi, but also whom those devices belong to based on
their login information.

See Norton, The Dos and Don’ts of Using Public Wi-Fi, https://us.norton.com/internetsecuritywifi-the-dos-and-donts-of-using-public-wi-fi.html.
13

8

 In turn, reviewing multiple access point logs can provide a detailed picture
of a particular user’s location as they move through physical space. Such review
can also reveal everyone who was in a particular vicinity at a particular point in
time. (See R.R. 409a–410a.)
D. Warrantless Law Enforcement Use of Wi-Fi–Derived Location
Information Poses Serious Concerns for All Americans.
The implications of a rule permitting warrantless law enforcement access to
Wi-Fi–derived location information stretch well beyond entities like Moravian, or
even much larger colleges and universities such as University of Pennsylvania
(26,675 students)14 and Penn State (96,408 students).15 Many municipalities offer
free Wi-Fi, including as part of transit systems like SEPTA;16 via kiosks,
community centers, or public libraries, as in Philadelphia;17 or in city parks as in
Pittsburgh.18 Cities across the country, ranging from Boston to El Paso, have built
free municipal Wi-Fi networks spanning significant portions of their geographic

14

Facts, University of Pennsylvania, https://home.www.upenn.edu/about/facts.

15

At A Glance, Pennsylvania State University, https://stats.psu.edu/.

16

See Wireless Internet Hotspots, SEPTA, https://www.septa.org/events/wifi.html.

See Victor Fiorillo, Here’s Where to Get Free Wi-Fi in Philly, Philadelphia (Feb. 18, 2020),
https://www.phillymag.com/news/2020/02/18/free-wifi-in-philly/.
17

18

See Comcast W. Pa., Comcast Installs WiFi Hotspots at Nine City of Pittsburgh Parks,
https://westernpa.comcast.com/2017/07/30/comcast-installs-wifi-hotspots-at-nine-city-ofpittsburgh-parks/.

9

 territory.19 A host of private entities have deployed Wi-Fi networks throughout
cities. Comcast, for example, has deployed “millions of hotspots.”20 Alone or in
conjunction with other networks, the widespread deployment of Wi-Fi networks
constitutes a relatively ubiquitous and comprehensive location surveillance tool.
While the tracking enabled by these networks is troubling for all segments of
society, it will particularly affect poor people and people of color, who often rely
on Wi-Fi networks outside their homes for connectivity. Cities offer municipal WiFi networks with the goal of alleviating disparities in Internet access. When New
York City rolled out the LinkNYC Program,21 for example, a city official stated:
“With this hotspot, this city takes an important step toward a fairer distribution of
broadband service. We know that low income New Yorkers, particularly African
American and Latino residents, rely on their smartphones to get online.”22
Philadelphia, which has one of the lowest rates of broadband access of any large
city in the United States, also hopes its Link program will help to shrink the digital

19

See Wikipedia, Municipal Wireless Network,
https://en.wikipedia.org/wiki/Municipal_wireless_network#United_States.
20

Xfinity WiFi, https://wifi.xfinity.com/.

21

See LinkNYC, https://www.link.nyc.

22

NYC.gov, Mayor de Blasio Announces Public Launch of LinkNYC Program, Largest and
Fastest Free Municipal Wi-Fi Network in the World (Feb. 18, 2016),
https://www1.nyc.gov/office-of-the-mayor/news/184-16/mayor-de-blasio-public-launch-linknycprogram-largest-fastest-free-municipal#/0.

10

 divide.23 Those who rely on public Wi-Fi networks for connectivity are at even
greater risk of surveillance because they may have few other options for Internet
connectivity.
II.

Warrantless Acquisition of Wi-Fi–Derived Location Information
Violates the Fourth Amendment.
The Superior Court erred when it held that Mr. Dunkins had no expectation

of privacy in his cell phone location information recorded by the college’s Wi-Fi
network. Commonwealth v. Dunkins, 229 A.3d 622, 629 (Pa. Super. Ct. 2020).
Contrary to the lower court’s view, law enforcement access to Wi-Fi location
information without a warrant infringes on individuals’ expectations of privacy for
much the same reason that the GPS monitoring of vehicles at issue in United States
v. Jones, 565 U.S. 400 (2012), and the cell site location information in Carpenter
do. The data facilitates detailed, pervasive, cheap, and efficient tracking of millions
of Americans in previously impossible ways. See Carpenter, 138 S. Ct. at 2217–
18; Jones, 565 U.S. at 429–30 (Alito, J., concurring in judgment); id. at 415–16
(Sotomayor, J., concurring).

See Bob Fernandez, In Comcast’s Hometown, the Chasm Between Internet Haves and HaveNots Looks Intractable, New Census Data Shows, Phila. Inquirer (Dec. 10, 2018),
https://www.inquirer.com/news/comcast-digital-internet-access-philly-poor-people20181210.html; Julie Zeglen, Philly’s Digital Divide Is Growing, But At Least We Got Some
Free Wi-Fi Kiosks, Generocity (Dec. 11, 2018), https://generocity.org/philly/2018/12/11/phillysdigital-divide-is-growing-but-at-least-we-got-some-free-wi-fi-kiosks/.
23

11

 A. The Data Is Detailed and Pervasive.
As the U.S. Supreme Court stated in Carpenter, “like GPS tracking of a
vehicle, cell phone location information is detailed, encyclopedic, and effortlessly
compiled.” 138 S. Ct. at 2216. As described above, Wi-Fi–derived location data
shares these characteristics. Because Wi-Fi transmitters have short broadcast
ranges—from just fifteen to twenty feet inside of buildings, to approximately 200
feet in unobstructed areas outside (R.R. 403a, 418a)—Wi-Fi location data
pinpoints individuals’ locations with greater precision than the cell phone data at
issue in Carpenter or even the GPS tracker in Jones. See Carpenter, 138 S. Ct. at
2218 (CSLI accurate to within one-eighth to four square miles); Jones, 565 U.S. at
403 (GPS device accurate to within 50–100 feet).
Furthermore, Wi-Fi location data allows the government to track people
inside of constitutionally protected spaces that reveal private information about
their lives. In this case, for example, Wi-Fi access points blanket the Moravian
campus, “inside, outside, in the dormitories, in the bedrooms, in the classrooms,”
and everywhere else. (R.R. 400a.) Wi-Fi location information reveals people’s
presence in homes, offices, houses of worship, medical facilities, and other spaces
that receive the highest protection under the Fourth Amendment, and for which
warrantless searches using both traditional and technological means are forbidden.

12

 Kyllo v. United States, 533 U.S. 27, 40 (2001); United States v. Karo, 468 U.S.
705, 716 (1984).
In this regard, the Superior Court was wrong to hold that the Fourth
Amendment does not apply because it merely reveals an individual’s location
while “present on the Moravian campus.” Dunkins, 229 A.3d at 629. While it is
true that a college campus is a defined geographic area, that does not make an
individual’s movements within that area any less private from the government than
the movements at issue in Carpenter. At a residential college like Moravian, most
students will spend most of their time on campus.24 Wi-Fi location data will reveal
the full spectrum of those students’ “privacies of life,” Carpenter, 138 S. Ct. at
2217 (citations omitted), from where they sleep at night, to when they visit the
campus health or counseling centers, to their patterns of exercise, socializing,
attending meetings of activist or political organizations, and more. Other Wi-Fi
networks log similarly rich chronicles of peoples’ locations and movements,
including their movements around a particular neighborhood or an entire city, and
raise equivalent concerns. Supra Part I.25 Thus, “[m]apping a cell phone’s location

24

See Residence Life and Housing, Moravian College, https://www.moravian.edu/rlh/oncampus/on-campus-overview (“All full-time undergraduate students are guaranteed on-campus
housing. Full-time undergraduate students whose permanent address is more than 50 miles from
the College are required to live on campus.”).
25

Additionally, law enforcement could access and aggregate logs from multiple Wi-Fi networks
looking for the handset’s unique identifier and thereby expand the area of surveillance to
anywhere that Wi-Fi reaches, regardless of whether it is a single network, or many.

13

 over the course of [time] provides an all-encompassing record of the holder’s
whereabouts. As with GPS information, the time-stamped data provides an
intimate window into a person’s life, revealing not only his particular movements,
but through them his ‘familial, political, professional, religious, and sexual
associations.’” Carpenter, 138 S. Ct. at 2217 (quoting Jones, 565 U.S. at 415
(Sotomayor, J., concurring)).
B. The Data Collection Is Nearly Ubiquitous.
An equally important factor in Carpenter was the recognition that cell phone
location information allows the government to access the patterns of movement of
essentially any person at any time. “[T]his newfound tracking capacity runs against
everyone,” the Court wrote, and “[o]nly the few without cell phones could escape
this tireless and absolute surveillance.” 138 S. Ct. at 2218.
The same is true of Wi-Fi location information. Both cell phones and
Internet access are “indispensable to participation in modern society,” Carpenter,
138 S. Ct. at 2220, and Wi-Fi use is both pervasive and essential. In this case,
Moravian’s students, faculty, and staff, have their location information logged as
they move around campus. Moravian is far from unique in this regard. Students at
colleges and universities across the country, not to mention residents of the
numerous cities with municipal and commercial Wi-Fi networks, are subject to
such tracking as well.

14

 C. The Data Permits Retrospective Searches.
The third factor that led the Court in Carpenter to distinguish CSLI from
traditional law enforcement surveillance was “the retrospective quality of the data”
which “gives police access to a category of information otherwise unknowable.”
Id. at 2218. As the Court explained, CSLI is akin to a time machine that allows law
enforcement to look at a suspect’s past movements, something that would be
physically impossible without the aid of technology: “In the past, attempts to
reconstruct a person’s movements were limited by a dearth of records and the
frailties of recollection. With access to CSLI, the Government can now travel back
in time to retrace a person’s whereabouts, subject only to the retention polices of
the wireless carriers.” Id. Wi-Fi–derived location information provides equivalent
capabilities.
D. Wi-Fi–Derived Location Tracking Grants Police an Unprecedented
Power.
In a series of cases addressing the power of “technology [to] enhance[] the
Government’s capacity to encroach upon areas normally guarded from inquisitive
eyes,” the Supreme Court “has sought to ‘assure [ ] preservation of that degree of
privacy against government that existed when the Fourth Amendment was
adopted.’” Carpenter, 138 S. Ct. at 2214 (quoting Kyllo, 533 U.S. at 34) (last
alteration in original); accord Jones, 565 U.S. at 406. As Justice Alito explained in
Jones, “[i]n the pre-computer age, the greatest protections of privacy were neither
15

 constitutional nor statutory, but practical.” 565 U.S. at 429 (Alito, J., concurring in
judgment). As with cell site location information, acquiring Wi-Fi location
information is “remarkably easy, cheap, and efficient compared to traditional
investigative tools,” violating people’s expectations of privacy and demanding
Fourth Amendment regulation. Carpenter, 138 S. Ct. at 2218.
*****
The confluence of these factors—detailed, indiscriminate, and pervasive
location data collection enabling highly efficient retrospective searches—explains
why the Superior Court was wrong to conclude that a search of Wi-Fi location data
“functions similarly to a security camera.” Dunkins, 229 A.3d at 629. At the time
of the search, the Moravian campus’s approximately 1,100 Wi-Fi access points
provided “curb-to-curb wireless, meaning that if you’re on Moravian College
property, you have access to [the] network,” regardless of whether you are outside
in a public area or inside in your dorm room. (R.R. 400a.) In contrast, security
cameras are unlikely to record presence “in classrooms, in dining halls,” and could
never reach into private dorm rooms and bathrooms. (R.R. 54a.) Moreover, a
security camera cannot, “[w]ith just the click of a button,” Carpenter, 138 S. Ct. at
2218, call up a comprehensive list of every person who was near it at a particular
time, unhindered by masks, hats, or darkness, much less instantly reconstruct a
person’s movements across campus, well beyond visual range.

16

 These factors also explain why even acquisition of shorter-term Wi-Fi
location information is a Fourth Amendment search. Fourth Amendment
protections apply regardless of the length of time a person is electronically located
and tracked because even short-term surveillance can reveal presence in
constitutionally-protected spaces.26 Moreover, even if some types of less-precise
location information were to be protected only over longer periods, the precision of
Wi-Fi–derived location information, placing people within a specific building or
even a particular room, can reveal information “the indisputably private nature of
which takes little imagination to conjure: trips to the psychiatrist, the plastic
surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal
defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue
or church, the gay bar and on and on.” People v. Weaver, 909 N.E.2d 1195, 1199

26

In holding that collecting seven days of location data was a search, the Carpenter Court did
not suggest that collection of location data over a shorter period would evade Fourth Amendment
protection. Before and after Carpenter, courts have held that much shorter collection of location
information deserves protection. See, e.g., State v. Muhammad, 451 P.3d 1060, 1072–73 (Wash.
2019) (holding that a single ping of cell-phone location information is a search requiring a
warrant); Commonwealth v. Almonor, 120 N.E.3d 1183, 1197 (Mass. 2019) (same); Tracey v.
State, 152 So. 3d 504, 520 (Fla. 2014) (refusing to base Fourth Amendment protection of realtime CSLI on the length of the time the cell phone is monitored); see also Karo, 468 U.S. at 715–
716 (learning information about presence inside a home using a radio beeper is a search).
Those rulings make sense. As Justice Sotomayor pointed out in Jones, “even short-term
monitoring” of location using advanced technologies implicates society’s reasonable
expectations of privacy by threatening to reveal “a wealth of detail about . . . familial, political,
professional, religious, and sexual associations” and thereby “alter[ing] the relationship between
citizen and government in a way that is inimical to democratic society.” 565 U.S. at 415–16
(Sotomayor, J., concurring) (citation omitted).

17

 (N.Y. 2009); see also Carpenter, 138 S. Ct. at 2218 (“A cell phone faithfully
follows its owner beyond public thoroughfares and into private residences, doctor’s
offices, political headquarters, and other potentially revealing locales.”).
The power to “travel back in time to retrace a person’s whereabouts” only
enhances that threat to privacy. Carpenter, 138 S. Ct. at 2218. Prior to the digital
age, the government would rarely have been able to perfectly reconstruct a
person’s past movements over even a short period, or even to reliably identify their
location at one specified point in time. Today, even short-term aggregations of WiFi–derived location information—such as the five hours here—instantaneously
“expos[e] a cell phone user’s attendance at a location a person would reasonably
expect to be private,” Muhammad, 451 P.3d at 1070 (citation omitted). Therefore,
it makes little sense to draw an “arbitrary” line based on the extent of location
information obtained. Muhammad, 451 P.3d at 1072–73.
For these reasons, the campus police required a warrant to obtain five hours
of Wi-Fi–derived location data revealing Appellant’s movements around campus.
III.

Using Wi-Fi Access Point Data to Identify All People in a Particular
Location Is Unconstitutional.
Likewise, law enforcement access to a list of all people whose devices were

in range of one or more Wi-Fi access points during a specified time period is a
Fourth Amendment search. This tool enables an unprecedented and chilling police
power; identification of essentially all people in a particular place at a particular
18

 time. This law enforcement capability upends the traditional balance of power
between the people and the police.
The Superior Court analogized the police search to identify individuals
present in the dorm to a cellular service “tower dump.” “Tower dump” refers to “a
download of information on all the devices that connected to a particular cell site
during a particular interval.” Dunkins, 229 A.3d at 629 (citing Carpenter, 138 S.
Ct. at 2220). The court concluded that because Carpenter reserved decision on the
permissibility of tower dumps, the Fourth Amendment was not implicated here. Id.
at 629. Of course, the Carpenter Court did not address the constitutionality of
CSLI tower dumps because it could not have done so on the facts before it, not
because the Court meant to signal a premature answer to that question.
This Court need not rule on the constitutionality of tower dumps, because
attributes of Wi-Fi–derived location information make clear it is a search lacking
the particularity that the Fourth Amendment requires. U.S. Const, amend. IV; Groh
v. Ramirez, 540 U.S. 551, 557 (2004). In this case, police were able to pinpoint
students to within one or two specific dorm rooms. (R.R. 74a, 403a.) See also
supra Part II (discussing Fourth Amendment protection for information about
presence inside constitutionally protected spaces). They learned not only that two
women who were not residents of the building were nonetheless present in the wee
hours of the morning, but even which rooms they were present in. (See Trial Ex. 2,

19

 at 8–12.) That is just one example of how private information can be—and was—
discovered in such a search. (R.R. 410–411a.) While looking for the perpetrator,
the campus police impinged not only on the privacy of Appellant, but also of
innocent third parties like these two women and their hosts. The same investigative
technique can reveal everyone present at a political gathering, a mental health
center, or an Alcoholics Anonymous meeting. By sweeping in information about a
large number of people who could not possibly have had anything to do with the
crime under investigation, the search was incompatible with the Fourth
Amendment’s prohibition on overbroad searches. (See Trial Exhibit 2, at 2 (search
identified about thirty-eight students present in the dorm at that time).)
Preventing overbroad searches by government agents was a central concern
motivating the framers of the Fourth Amendment. In the American colonies,
British agents used general warrants and “writs of assistance” to conduct broad
searches for smuggled goods, limited only by the agents’ own discretion. See
Stanford v. Texas, 379 U.S. 476, 481–82 (1965). “The general warrant specified
only an offense . . . and left to the discretion of the executing officials the decision
as to which persons should be arrested and which places should be searched.”
Steagald v. United States, 451 U.S. 204, 220 (1981). “Opposition to such searches
was in fact one of the driving forces behind the Revolution itself.” Riley v.
California, 573 U.S. 373, 403 (2014).

20

 A search of the Wi-Fi location information of every student in a residence
hall—information that may be precise enough to place individuals in particular
dorm rooms—in the hope that it will turn up the identity of one criminal suspect, is
akin to a search of every house in an area of a town—simply on the chance that the
suspect might be located inside one. Even when targeted surveillance using
modern technologies could be reasonable under the Fourth Amendment, dragnet
collection of many people’s private information would not be. See United States v.
Knotts, 460 U.S. 276, 284 (1983) (comparing use of a beeper, which requires
resource-intensive tailing at close range by a human with an analog radio receiver
to “dragnet type law enforcement practices,” which would raise a distinct
constitutional question). What’s more, the ability to retrospectively call up a list of
everyone who was in a particular building—or even a room of that building—at a
moment in the past imperils privacy and threatens to chill freedom of association in
ways the Founders could not have imagined.
Recently, courts have rejected the government’s attempts to engage in
similar types of retrospective digital dragnet searches. In recent years, police have
begun making “geofence” requests to Google, asking the company to identify all

21

 users whose smartphones were in a specific area at a particular time.27 Even with a
warrant, two federal magistrate judges recently held these searches to be overbroad
general warrants. In re Search of: Info. Stored at Premises Controlled by Google,
No. 20 M 392, __ F. Supp. 3d __, 2020 WL 4931052 (N.D. Ill. Aug. 24, 2020)
[hereinafter Fuentes Geofence Opinion]; In re Search of: Info. Stored at Premises
Controlled by Google, as Further Described in Attachment A, No. 20 M 297, 2020
WL 5491763 (N.D. Ill. July 8, 2020) (slip op.). This is because, by sweeping in
information about many bystanders simply by virtue of their unwitting proximity
to the scene of an alleged crime, the searches lack particularity and individualized
suspicion as required by the Fourth Amendment. Fuentes Geofence Opinion, 2020
WL 4931052, at *14 (citing Ybarra v. Illinois, 444 U.S. 85, 91 (1979)). Like
overbroad demands for Google users’ location information, the overbroad Wi-Fi–
derived location search in this case constitutes a “general, exploratory rummaging”
intolerable under the Fourth Amendment. Fuentes Geofence Opinion, 2020 WL
4931052, at *7 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)).
Because police made no attempt to even try to get a warrant in this case, the
search was clearly unconstitutional. But in deciding this case, the Court should also

27

See Jennifer Valentino-DeVries, Tracking Phones, Google Is a Dragnet for the Police, N.Y.
Times (Apr. 13, 2019), https://www.nytimes.com/interactive/2019/04/13/us/google-locationtracking-police.html.

22

 bear in mind that any attempt to secure judicial authorization for such an overbroad
search would run up against the Fourth Amendment’s prohibition on general
warrants.
IV.

The Third-Party Doctrine Does Not Vitiate the Privacy Rights at Issue
in this Case.
In Carpenter, the Supreme Court held that the mere fact that records are held

by a third party does not vitiate an individual’s reasonable expectation of privacy
under the Fourth Amendment. 138 S. Ct. at 2220. Instead, the Court explained, the
cases on which the third-party doctrine is based—United States v. Miller, 425 U.S.
435 (1976), and Smith v. Maryland, 442 U.S. 735 (1979)—require a dual inquiry
into “the nature of the particular documents sought” and whether they were
voluntarily exposed. 138 S. Ct. at 2219–20. Here, both factors favor the conclusion
that the third-party doctrine does not apply.28
First, Wi-Fi–derived location information is highly sensitive, revealing
numerous privacies of life. Supra Parts II–III.
Second, it is not voluntarily exposed. As the Supreme Court explained in
Carpenter, “cell phone location information is not truly ‘shared’ as one normally

In addition, this Court has long rejected the third-party doctrine as “a dangerous precedent,
with great potential for abuse” when interpreting the state constitutional protection against
unreasonable searches and seizures in Article I, Section 8. Commonwealth v. DeJohn, 403 A.2d
1283, 1289 (Pa. 1979).
28

23

 understands the term,” both because carrying a cell phone is “indispensable to
participation in modern society,” and because once a person has an operational cell
phone, it automatically and inescapably generates location data. 138 S. Ct. at 2220.
Wi-Fi is indispensable in American society, and on the Moravian campus.
“Today, the Internet plays an essential role in the daily lives of most people—in
how they communicate, access news, purchase goods, seek employment, perform
their jobs, enjoy entertainment, and function in countless other ways.” J.I. v. N.J.
State Parole Bd., 155 A.3d at 1012. Many people—disproportionately young,
poor, or people of color—rely out of necessity on Wi-Fi connections to access the
Internet and use apps on their phones. Supra I.D. At Moravian, students must use
the network—hardwired or Wi-Fi—for access not only to the Internet, but also to
the school’s online resources.29
Further, use of Wi-Fi automatically and inescapably generates location data.
Supra Part II.B; (R.R. 53a.) Both a cellular telephone connection and a Wi-Fi
network require the user to initially configure their phone to communicate with the
network, and thereafter the phone automatically connects to cellular towers or WiFi access points in range, regardless of whether the person is using the device.30

29

Welcome to AMOS, Access Moravian Online Servs., https://amos.moravian.edu/ICS.

30

See, e.g., First Use Configuration and Device Activation: iPhone, T-Mobile, https://www.tmobile.com/support/devices/apple/first-use-configuration-and-device-activation-iphone (“Before

24

 (R.R. 61a, 76–77a.) Just as in Carpenter, Wi-Fi “logs a [location] record by dint of
its operation, without any affirmative act on the part of the user beyond powering
up.” 138 S. Ct. at 2220. “Apart from disconnecting the phone from the network,
there is no way to avoid leaving behind a trail of location data.” Id.
Like the CSLI in Carpenter, Wi-Fi–derived location information is in no
meaningful sense voluntarily shared.
V.

Moravian’s Student Handbook Does Not Defeat Appellant’s Reasonable
Expectation of Privacy in His Location Data.
The Superior Court was wrong to conclude that a provision in the Moravian

Student Handbook eliminated Appellant’s reasonable expectation of privacy in his
Wi-Fi–derived location information. Dunkins, 229 A.3d at 626.
Upon enrollment, students are generally required to sign a document stating
that they have been given a copy of the Moravian Student Handbook. (R.R. 36a.)31
The Handbook includes policies about parking, financial aid, and housing, the
student code of conduct, the academic code of conduct, and more.32 Part of this
document advises individuals that the college may collect and disclose all Internet
data composed, transmitted, or received through the campus computer system and

the iPhone can be used, it must first be activated and configured to work on the T-Mobile
network.”).
31

The record contains no evidence that Appellant signed the Handbook.

32

Student Handbook, Moravian College, https://www.moravian.edu/handbook.

25

 its network connections. Dunkins, 229 A.3d at 626. The Handbook does not
mention any kind of location tracking. Despite that, the Superior Court held that
pursuant to the Handbook, Appellant forfeited any expectation of privacy in data
his phone generated, including location data, and had voluntarily consented to its
disclosure to law enforcement. Id.
Privacy policies, terms of service (TOS), and acceptable use policies (AUP)
such as the one included in the computing resources section of the College
Handbook do not determine an individual’s Fourth Amendment rights to be free of
unreasonable government searches and seizures. Service providers regularly
develop non-negotiable statements of policy to advance their private interests.
Communications services almost always claim the right to conduct private
searches for business reasons, including identifying and stopping unlawful abuse of
the service. But the fact that a private entity reserves the right to review data on its
network or interdict illegal activity does not empower the police to collect that
information without a warrant. Were that true, Carpenter would have been decided
differently.
In Carpenter, the Supreme Court made clear that one’s reasonable
expectation of privacy in information as against the police is not automatically
defeated merely because a third party has access to or control over that
information. 138 S. Ct. at 2219–20. Carpenter would have been decided the other

26

 way if cell phone users’ reasonable expectation of privacy could be defeated by a
private notice. Every cellular service provider (including Sprint and MetroPCS,
which Mr. Carpenter’s phone used) has a terms-of-service agreement that allows
provider access to enforce the law.33 Every Justice of the Supreme Court in that
case also suggested that the Fourth Amendment protects the content of digital
documents stored with third parties. See Carpenter, 138 S. Ct. 2206, 2222
(majority op.); id. at 2230 (Kennedy, J., dissenting); id. at 2262–63, 2269
(Gorsuch, J., dissenting). This is true even though—as with cellular service
providers—essentially every Internet service comes with a privacy policy, TOS, or
AUP that permits the provider some access to stored files and accompanying
transactional data, including for law enforcement purposes.34
Terms of service and AUPs, with their reservations of rights, are almost
never negotiated. These policies are often buried on a website or in an app, where
the user has no choice but to “agree” by clicking a box. Here, in the first days of
school, and presumably along with housing assignments, cafeteria hours, and

33

See Sprint/T-Mobile Privacy Policy, T-Mobile, https://www.t-mobile.com/privacy-center/ourpractices/privacy-policy (“We may disclose personal data to third parties involved in legal
process or protection matters, including government authorities, where we believe that access,
use, preservation or disclosure of such information is reasonably necessary.”).
34

See, e.g., Privacy Policy, Google, https://policies.google.com/privacy (Company will share
personal information upon a good-faith belief that sharing is reasonably necessary to comply
with the law, with enforceable governmental requests, to detect fraud, protect Google’s rights
and property, and more.); Microsoft Privacy Policy, https://privacy.microsoft.com/enUS/privacystatement (similar).

27

 campus maps, students receive a copy of the multi-policy Handbook and are told
they must sign a document indicating that they’ve received and understood the
terms. They likely sign before even reading the document. Students have no
choice; they’ve already enrolled, paid, and shown up.
The U.S. Supreme Court recently rejected the argument that Fourth
Amendment rights can be determined by private form contracts. In Byrd v. United
States, 138 S. Ct. 1518 (2018), the police stopped and searched a rental car driven
by someone who was not on the rental agreement but was given permission to
drive by the renter. The Court held that drivers have a reasonable expectation of
privacy in a rental car even when they are driving the car in violation of the rental
agreement. Id. at 1529. Car-rental agreements, wrote the Court, are filled with long
lists of restrictions that have nothing to do with a driver’s reasonable expectation of
privacy in the rental car. Even a serious violation of the rental agreement has no
impact on expectation of privacy. Rental agreements, like terms of service,
“concern risk allocation between private parties . . . . But that risk allocation has
little to do with whether one would have a reasonable expectation of privacy in the
rental car if, for example, he or she otherwise has lawful possession of and control
over the car.” Id. Since the defendant in Byrd was lawfully in possession of the car,
despite the fact that he was violating a private agreement, he had an expectation of
privacy.

28

 The specific wording of the Handbook should not define the scope of
Moravian students’ expectations of privacy. Basing constitutional rights on the
linguistic details of a website or Handbook notice would lead to a difficult-toadminister patchwork. For example, even in Smith v. Maryland—one of the cases
that spawned the modern third-party doctrine—the Court noted, “[w]e are not
inclined to make a crazy quilt of the Fourth Amendment, especially in
circumstances where (as here) the pattern of protection would be dictated by
billing practices of a private corporation.” 442 U.S. at 745. And in United States v.
Owens, the Tenth Circuit did not let a motel’s private terms govern the lodger’s
expectation of privacy, noting, “[a]ll motel guests cannot be expected to be
familiar with the detailed internal policies and bookkeeping procedures of the inns
where they lodge.” 782 F.2d 146, 150 (10th Cir. 1986).
Appellant therefore retained his expectations of privacy in his location data.
The school might permissibly access that data for its own administrative purposes
(network diagnostics, for example). But when, as here, the campus police are
investigating criminal activity and direct college personnel to search for and
disclose sensitive information, that requires at least a search warrant.
The cases cited by the Superior Court in reaching its holding are inapposite
or distinguishable. Both Commonwealth v. Sodomsky, 939 A.2d 363, 369 (Pa.
Super. Ct. 2007), and United States v. Adkinson, 916 F.3d 605 (7th Cir. 2019),

29

 involved private, not law enforcement searches. See United States v. Jacobsen, 466
U.S. 109, 115–117 (1984) (law enforcement may replicate private party search that
uncovers evidence of a crime, but may not exceed scope of private search). United
States v. Simons, 206 F.3d 392 (4th Cir. 2000), involved a government employer’s
policy on employee use of employer-provided computers and network access.
Medlock v. Trustees of Indiana University involved a public university conducting
a regulatory, not a law enforcement, search. 738 F.3d 867, 872–73 (7th Cir. 2013).
Here, in contrast, the search was conducted from the outset by campus police for
law enforcement purposes. None of these cases justify warrantless law
enforcement searches of college students’ or members of the public’s private data
or movements.
CONCLUSION
For the foregoing reasons, amici respectfully urge the Court to hold that
warrantless acquisition of Wi-Fi–derived location information violates the Fourth
Amendment.

30

 September 28, 2020

Respectfully submitted,
/s/ Andrew Christy
Andrew Christy
Pa. I.D. No. 322053
American Civil Liberties Union
of Pennsylvania
P.O. Box 60173
Philadelphia, PA 19102
(215) 592-1513 x138
achristy@aclupa.org
Counsel for Amici Curiae
On the Brief:*
Nathan Freed Wessler
Brett Max Kaufman
American Civil Liberties Union
Foundation
125 Broad Street, 18th Floor
New York, NY 10004
(212) 549-2500
Jennifer Stisa Granick
American Civil Liberties Union
Foundation
39 Drumm Street
San Francisco, CA 94111
(415) 343-0758
Jennifer Lynch
Andrew Crocker
Electronic Frontier Foundation
815 Eddy Street
San Francisco, CA 94109
(415) 436-9333

*

Counsel thank law student Rachel D. Maremont, who contributed to preparation of this Brief.

31

 CERTIFICATE OF COMPLIANCE WITH WORD LIMIT
I certify pursuant to Pa.R.A.Ps. 531 and 2135 that this Brief does not exceed
7,000 words.
CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access
Policy of the Unified Judicial System of Pennsylvania: Case Records of the
Appellate and Trial Courts that require filing confidential information and
documents differently than non-confidential information and documents.
CERTIFICATE OF SERVICE
I hereby certify that the foregoing document was served upon the parties at
the addresses and in the manner listed below:
Via PACFile
Michael Jay Diamondstein
Stephanie Renee Esrig
Michael J. Diamondstein PC
Two Penn Center, Suite 900
1500 JFK Boulevard
Philadelphia, PA 19102
Rebecca J. Kulik
Terence Patrick Houck
Katharine R. Kurnas
Northampton County District Attorney's Office
669 Washington Street
Easton, PA 18042-7490
/s/ Andrew Christy
Dated: September 28, 2020

Andrew Christy

32