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May 31 — The government doesn't need to get a search warrant before it grabs cell tower records kept by mobile phone companies that can be used to track a user's location, an en banc panel of the U.S. Court of Appeals for the Fourth Circuit ruled May 31 by a 12-3 vote ( United States v. Graham, 2016 BL 171712, 4th Cir., No. 12-4659, 5/31/16 , on rehearing in 796 F.3d 332).
The decision is significant because it overturns a panel ruling from last summer that ran contrary to the vast majority of other federal court rulings on this issue.
Individuals don't enjoy any Fourth Amendment protection for information they voluntarily turn over to third parties, the court said in an opinion by Judge Diana Gribbon Motz.
The Fourth Circuit's decision to join its sister circuits “isn't very surprising,” former Magistrate Judge Ronald J. Hedges told Bloomberg BNA.
Hedges noted that the en banc Eleventh Circuit in 2015 came to the same conclusion, overturning a panel decision which announced that police needed a warrant to secure tower information from mobile phone providers (see United States v. Davis, 754 F.3d 1205 (11th Cir. 2014); 97 CrL 149, 5/13/15).
The decision may not have been unanticipated, but civil liberties advocates say we should all be alarmed by the considerable invasion of privacy here.
“The use of a cell phone is all but a necessity in today's world, but the court sidesteps any consideration of the realities of how people use this technology and of how long-term location tracking can reveal the intimacies of people's lives,” Andrew Crocker, of the Electronic Frontier Foundation, told Bloomberg BNA.
The EFF filed an amicus appearance on behalf of the defendants.
According to Motz, the Fourth Circuit decision is in accord with “every other federal appellate court” and the “vast majority” of district court decisions that have addressed this issue.
The Fourth Amendment doesn't protect information voluntarily disclosed to a third party because even a subjective expectation of privacy in this data isn't one that society is prepared to recognize as reasonable, Motz said.
Aaron Graham and Eric Jordan were convicted of several armed robberies in the Baltimore area based in part on cell tower data the government mined from records collected by mobile phone provider Sprint/Nextel which put the suspects near the stores when they were robbed.
The decision is also consistent with U.S. Supreme Court precedent, Motz said, pointing to United States v. Miller, 425 U.S. 435 (1976), and Smith v. Maryland, 442 U.S. 735 (1979), which held that investigators don't need a search warrant based on probable cause to obtain a suspect's bank records or a phone company's records of the numbers dialed by land-line phones.
“In sum, the Defendants’ preferred holding lacks support from all relevant authority and would place us in conflict with the Supreme Court and every other federal appellate court to consider the question,” Motz wrote.
“The Supreme Court has already spoken on this issue,” Hedges said, “and now it is up to the justices to decide whether the lower courts are reading the third-party doctrine correctly.”
Hedges noted that Justice Sonia Sotomayor recently suggested in her concurring opinion in United States v. Jones, 2012 BL 14420 (U.S. 2012), that the time has come to review the third-party doctrine as it relates to digital information.
Is Graham a good vehicle for clarification from the justices?
John P. Elwood, a partner at Vinson & Elkins LLP in Washington, told Bloomberg BNA at the beginning of this current term that he thinks it is “inevitable” that the issue will land in the court in the near future.
The lawyer for Graham and Jordan, Meghan Suzanne Skelton, of the Federal Public Defender's Office in Greenbelt, Md, said her clients would seek review in the U.S. Supreme Court.
But the court hasn't tipped its hand one way or another, Hedges said. On Nov. 9, 2015, it declined to review the Eleventh Circuit decision finding no expectation of privacy in mobile tower data (98 CrL 143, 11/11/15).
Chief Judge William B. Traxler Jr. and Judges J. Harvie Wilkinson III, Paul V. Niemeyer, Robert B. King, Roger L. Gregory, Dennis W. Shedd, Allyson K. Duncan, G. Steven Agee, Barbara Milano Keenan, James A. Wynn Jr. and Albert Diaz joined Motz's opinion.
Wilkinson added a concurrence wholeheartedly embracing the majority opinion and cataloguing his concern that “requiring probable cause and a warrant in circumstances such as these needlessly supplants the considered efforts of Congress with an ill-considered standard of our own.”
Any mobile phone customer user who sees the phone’s signal strength fluctuate must know that, when placing a call, the phone exposes its location to the nearest cell tower and that the customer is giving the service provider a location to establish a connection between the phone and a nearby cell tower, Motz said.
“A cell phone user thus voluntarily conveys the information necessary for his service provider to identify the CSLI for his calls and texts,” Motz wrote.
But the three dissenting judges didn't see it that way, arguing that customers don't volunteer information just because they buy a mobile phone, turn it on and put it in their pocket.
“Even if cellphone customers have a vague awareness that their location affects the number of ‘bars’ on their phone, they surely do not know which cellphone tower their call will be routed through,” Judge James A. Wynn Jr. said in a dissent and concurrence joined by Judges Henry F. Floyd and Stephanie D. Thacker
Crocker said the dissent got it right.
“The court's opinion relies on a mechanical reading of old case law and a strained definition of what it means to ‘voluntarily' give information to third parties,” he said.
That strained reading allowed the government to collect over 200 days worth of cell site location information, all without a warrant, he added.
Hedges noted that several states have ruled that a warrant is necessary, either as a matter of federal doctrine or as a matter of independent state constitutional law.
Hedges has compiled a comprehensive list of judicial decisions and articles on this subject which is available on the website of the Massachusetts Attorney General's Office.
U.S. Attorney Rod J. Rosenstein argued for the government.
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