Fourth Amendment Warrant Required For Stored Mobile Site Data, 11th Cir. Says

By Hugh Kaplan  

June 12 — The Fourth Amendment's warrant requirement protects individuals' privacy in information about the locations of their mobile phones when they made or received calls, the U.S. Court of Appeals for the Eleventh Circuit ruled June 11.

Judge David B. Sentelle, writing for the court, said it doesn't matter that a person's location in a public place is readily observable or that the mobile site location information is obtained by the government from a third-party service provider.

The Eleventh Circuit's ruling means that the federal Stored Communications Act is unconstitutional to the extent it authorizes the government to use a court order based on less than probable cause to obtain mobile site data from phone service providers.

The court qualified its ruling, saying that the good faith exception to the exclusionary rule allows the admission of mobile site evidence if law enforcement officers obtained the evidence prior to the court's decision.

Other federal and state courts are divided on whether and how the Fourth Amendment protects privacy in geolocation information.

Location Information Is Private

The government argued that using the court order provision to obtain mobile site data is constitutional because individuals lack a reasonable expectation that their location in a particular public place is private.

People typically keep their phone with them wherever they go, and this means mobile site data about a single call can intrude on an expectation of privacy that is reasonable, the Eleventh Circuit said.

The appeals court said:

Even on a person's first visit to a gynecologist, a psychiatrist, a bookie, or a priest, one may assume that the visit is private if it was not conducted in a public way. One's cell phone, unlike an automobile, can accompany its owner anywhere. Thus, the exposure of the cell site location information can convert what would otherwise be a private event into a public one. When one's whereabouts are not public, then one may have a reasonable expectation of privacy in those whereabouts.

In United States v. Jones , 132 S. Ct. 945 (2012), the U.S. Supreme Court ruled that location information gathered by global positioning system devices falls within the protection of the Fourth Amendment and that continuous monitoring of a car's location required a warrant.

The Jones court, however, avoided deciding whether an individual's expectation of privacy in geolocation information is “reasonable” within the meaning of the Fourth Amendment.

The Eleventh Circuit said that, even if under Jones, location information from a GPS device on a car would be protected only in the case of aggregated, continuously collected data, “even one point” of mobile phone “location data can be within a reasonable expectation of privacy.”

The Eleventh Circuit's ruling means that the federal Stored Communications Act is unconstitutional to the extent it authorizes the government to use a court order based on less than probable cause to obtain mobile site data from phone service providers.

Third-Party Doctrine

Although a person has no legitimate expectation of privacy in information he or she “voluntarily turns over to third parties,” mobile phone customers who make or receive calls don't voluntarily divulge their location information to their service providers in any way that is meaningful to privacy analysis, the court said.

It is “unlikely” that mobile phone users are aware that their service providers collect and store historical location information, the court said. When a mobile 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 caller that making the call will reveal his or her location, the court said.

Moreover, when phone customers receive rather than place a call, they haven't voluntarily exposed anything at all, it said.

Judges Joel F. Dubina and Beverly B. Martin joined the opinion.

Anne M. Hayes of Cary, N.C., argued for the defendant. The U.S. Attorney's Office in Miami argued for the government. The ACLU, in New York, argued as amicus curiae.

To contact the reporter on this story: Hugh Kaplan in Washington at hkaplan@bna.com

To contact the editor responsible for this story: Mike Moore at mmoore@bna.com

Full text of the court's opinion is available at http://www.bloomberglaw.com/public/document/UNITED_STATES_OF_AMERICA_PlaintiffAppellee_versus_QUARTAVIOUS_DAV.