Caveat Vendor

A Circuit Split Emerges: At Least for Now, the Protection Afforded to Cell Location Information Depends on Where You Are

August 10, 2015

Mary-Elizabeth M. Hadley

Can the government compel disclosure of historical cell-site location information (“CSLI”) without a warrant?  According to the Fourth Circuit, cell phone subscribers possess a reasonable expectation of privacy in such information, and a warrant is required.  In contrast, the Eleventh and Fifth Circuits have held that a lower-threshold court order is all that is needed.
Under the Stored Communications Act, 18 U.S.C. § 2703(c) and (d), the government can obtain electronic communication service records of subscriber services through a warrant or a court order.  The latter does not require probable cause and can be obtained if there are “reasonable grounds to believe that the . . . records or other information sought, are relevant and material to an ongoing criminal investigation.”  Id. at § 2703(d).
Recent Fourth Circuit Decision
In a decision last week, a divided panel of the Fourth Circuit held “that the government’s warrantless procurement of the CSLI was an unreasonable search in violation of Appellants’ Fourth Amendment rights.”  United States v. Graham, No. 12-4659, at 3 (4th Cir. Aug. 5, 2015).

The CSLI at issue – 221 days’ worth of information obtained from Sprint/Nextel pursuant to a court order – helped the prosecution establish the suspects’ location before and after the robberies of fast food restaurants and other businesses.  Senior Judge Davis, joined by Judge Thacker, explained:

Examination of a person’s historical CSLI can enable the government to trace the movements of the cell phone and its user across public and private spaces and thereby discover the private activities and personal habits of the user.  Cell phone users have an objectively reasonable expectation of privacy in this information. Its inspection by the government, therefore, requires a warrant, unless an established exception to the warrant requirement applies.
Id. at 19-20.  Here, the established exception was the good faith exception to the exclusionary rule.  Because the government relied in good faith on the court orders, the panel upheld the lower court’s decision to allow the evidence.
Although concurring in the judgment, Judge Motz dissented from the holding that the government violated the defendants’ Fourth Amendment rights on the grounds that the third-party doctrine applied.  Citing Smith v. Maryland, 442 U.S. 735, 743-44 (1979), Judge Motz wrote that “[t]he Court has long held that an individual enjoys ‘no legitimate expectation of privacy,’ and so no Fourth Amendment protection, in information he ‘voluntarily turns over to a third party.’”  Id. at 106.  She further noted that the “rule applies even when ‘the information is revealed,’ as it assertedly was here, ‘on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.’”  Id. at 106-107 (citing United States v. Miller, 425 U.S. 435, 443 (1976)).  Judge Motz was not persuaded by the majority’s finding that the doctrine did not apply “because a cell phone user does not ‘convey’ CSLI to her service provider at all – voluntarily or otherwise – and therefore does not assume any risk of disclosure to law enforcement.”  Id. at 43.
A Circuit Split Emerges
Like Judge Motz, the Eleventh and Fifth Circuits have found that historical CSLI is not protected by the Fourth Amendment due to the application of the third-party doctrine.
In a decision earlier this summer, the en banc Eleventh Circuit found that the government properly obtained a § 2703(d) order, versus a search warrant, for the production of MetroPCS’s cell tower records for a bank robbery investigation.  United States v. Davis, 785 F.3d 498 (11th Cir. May 5, 2015).  As loyal blog readers will recall, a three judge panel had reached the opposite conclusion last year.

The 9-2 decision explained:

For starters, like the bank customer in Miller and the phone customer in Smith, Davis can assert neither ownership nor possession of the third-party’s business records he sought to suppress. Instead, those cell tower records were created by MetroPCS, stored on its own premises, and subject to its control. Cell tower location records do not contain private communications of the subscriber. This type of non-content evidence, lawfully created by a third-party telephone company for legitimate business purposes, does not belong to Davis, even if it concerns him. … More importantly, like the bank customer in Miller and the phone customer in Smith, Davis has no subjective or objective reasonable expectation of privacy in MetroPCS’s business records showing the cell tower locations that wirelessly connected his calls at or near the time of six of the seven robberies.

Id. at 511.  Although the Eleventh Circuit recognized that “the landscape of technology has changed” since Miller and Smith, it found that the “cell tower method of call connecting does not require a different constitutional result just because the telephone company has decided to automate wirelessly and to collect the location of the company's own cell tower that connected the calls.”  Id. at 512 (internal citation and quotation marks omitted).
As we have written, the Fifth Circuit reached the same result in 2013, finding that a court order under 2703(d) compelling production of business records showing cell tower location information did not violate the Fourth Amendment and no search warrant was required.  In re Application of the United States for Historical Cell Site Data, 724 F.3d 600, 611-15 (5th Cir. 2013).  Relying on Smith, the Fifth Circuit found that cell phone users had no subjective expectation of privacy in business records showing cell tower locations.  See id. at 613 (concluding that “[c]ell phone users…understand that their service providers record their location information when they use their phones at least to the same extent that the landline users in Smith understood that the phone company recorded the numbers they dialed.”).
Potential for High Court Review
The day when the U.S. Supreme Court must resolve these differences may be drawing nearer.  Quartavious Davis filed a July 29, 2015, petition asking the Court to review the Eleventh Circuit’s ruling upholding his conviction.  Davis argued that his case presents the pressing question of whether the Fourth Amendment protects against warrantless acquisition of sensitive and voluminous digital records of people’s locations and movements over time.
In the interim, the standard applicable to requests for cellphone records will likely continue to vary based on where the data happen to be located. 

Caveat Vendor is Paul Hastings’ Consumer Issues blog. We welcome your feedback. Please contact our blog editor with any thoughts or suggestions.
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