A federal appeals court has ruled that “cell site location information is within the subscriber’s reasonable expectation of privacy” and that gathering such information without a warrant violates a person’s “reasonable expectation of privacy.”
Quartavius Davis was convicted of multiple offenses, including robbery, conspiracy and “possession of a firearm in furtherance of a crime of violence.” He was sentenced to “consecutive terms of imprisonment” that totaled approximately 162 years.
Primarily, Davis’ appeal challenged the fact that “location evidence based on stored cell site information obtained by the prosecution without a warrant, in violation of his Fourth Amendment right,” had been admitted by the court.
During trial the prosecution presented records from cell phone service providers which showed that Davis (and co-defendants also involved in criminal activity) “placed and received phone calls in close proximity to the locations of each of the charged robberies.” The information was used to strengthen the government’s case that Davis was at the scene of the crimes.
The Eleventh Circuit Court of Appeals acknowledged in its ruling [PDF] that the question of “whether cell site location information is protected by the Fourth Amendment guarantees against warrantless searches has never been determined by this court or the Supreme Court.”
While the cases are by no means identical, the appeals court relied on a Supreme Court precedent, US v. Jones, in which the “warrantless gathering” of GPS location data was found to have violated the defendant’s Fourth Amendment rights.
Nathan Freed Wessler, a staff attorney for the American Civil Liberties Union (ACLU), reacted: “The court’s opinion is a resounding defense of the Fourth Amendment’s continuing vitality in the digital age.”
“This opinion puts police on notice that when they want to enlist people’s cell phones as tracking devices, they must get a warrant from a judge based on probable cause. The court soundly repudiates the government’s argument that by merely using cell a phone, people somehow surrender their privacy rights,” Wessler added.
A press release from the ACLU on the decision explained that the US Attorney’s Office in Miami obtained the cell phone location records of four people from their wireless carrier “over a 67-day period.” For just Davis, police obtained “11,606 location records – an average of 173 points each day.”
The US Attorney’s Office got what is called a “D-order” from a federal magistrate judge to collect all this information. [This refers to “the applicable section of the federal Stored Communications Act.”]
“The standard for getting a D-order is that it be “relevant and material” to an investigation, which is lower than the probable cause standard required by the Fourth Amendment. Although getting D-orders for location information has been a common law enforcement practice, the appeals court rejected it,” according to the ACLU.
As the appeals court noted, the government had argued that Davis “did not have a reasonable expectation of privacy” and had “surrendered that expectation by exposing his cell site location to his service provider when he placed the call.” It acknowledged that the government had invoked Smith v. Maryland, which has been a judicial precedent that has historically made it difficult to win lawsuits alleging violations of privacy. But the appeals court noted a much more recent case where the Third Circuit Court of Appeals had observed “a cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way.”
“It is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information,” the Third Circuit added. And, “When a cell phone user makes a call, the only information that is voluntarily and knowingly conveyed to the phone company is the number that is dialed, and there is no indication to the user that making that call will also locate the caller.”
Furthermore, the appeals court found it to be persuasive that when a cell phone user receives a call they have not “voluntarily exposed anything at all.”
The appeals court determined that Davis had not “voluntarily disclosed his cell site location information to the provider in such a fashion as to lose his reasonable expectation of privacy.”
“The prosecutor at trial stressed how the cell phone use of the defendant established that he was near each of six crime scenes,” according to the decision. “While committing a crime is certainly not within a legitimate expectation of privacy, if the cell site location data could place him near those scenes, it could place him near any other scene. There is a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute.”
The ACLU, ACLU of Florida, the Center for Democracy & Technology, the Electronic Frontier Foundation and the National Association of Criminal Defense Lawyers (NACDL) had filed an amicus brief in the case in support of Davis’ appeal.
There is another case, US v. Graham, in which these same groups are challenging the government’s gathering of 221 days of “historical cell site location information for two suspects.” Aaron Graham, one of the suspects, had his location pinpointed 29,659 times in that time span.
The significance of this decision by the Eleventh Circuit is that in Florida, Georgia and Alabama police will now face a warrant requirement. It also is likely to influence future decisions, such as the outcome of US v. Graham.
Furthermore, the NSA admitted that it ran an “experiment” pilot project in 2010 and 2011 where it collected cell phone data of Americans. It claims it discontinued the collection buy why and whether the agency kept the data collected is unknown.
The appeals court decision, however, makes it clear that having such a database of cell phone location data from Americans that is collected without a warrant is a violation of the Fourth Amendment. Any government agency that is engaging in this collection under any program, whether secret or known to the public, is infringing upon the rights of citizens.
This also should extend to law enforcement agencies in states like Florida where it is known that they are using “Stingray” surveillance technology that sweeps up not only data from the target but also bystanders when pretending to be a cell phone tower to locate a suspect.
A warrant should be required if police are going to point new technology to obtain the location of anyone’s cell phone.
Photo from Wikimedia Commons and in the public domain