SCOTUS Should Review Cell Tower Privacy, Group Says

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By Jimmy H. Koo

Oct. 28 — Law enforcement should be forced to always get a search warrant to identify a mobile phone user’s movements based on cell tower records, a privacy advocacy group told the U.S. Supreme Court Oct. 28 ( Graham v. United States, U.S., No. 16-6308, friend of the court brief filed 10/28/16 ).

In the first friend of the court brief filed in the case, the San Francisco-based Electronic Frontier Foundation urged the Supreme Court to grant review because mobile phone location data implicates the Fourth Amendment right against unreasonable searches.

U.S. citizens “have the right to expect location data generated from their cell phones is private and protected by the Constitution against unreasonable searches and seizures,” EFF said in a statement Oct. 28.

Exposed Location Data

In the case, defendant Aaron Graham was convicted of armed robbery after being implicated by mobile phone location data that tied him to the stores that were robbed. The government was able to get the information by mining mobile phone provider records.

A federal district court denied Graham's bid to suppress the location data.

A U.S. Court of Appeals for the Fourth Circuit panel held Aug. 5, 2015 that police must have a search warrant before they compel mobile phone service providers to turn over data that locates suspect's physical movements.

But the full Fourth Circuit overturned the panel ruling May 31, holding that individuals don't enjoy any Fourth Amendment protection for information they voluntarily turn over to third parties—in this case mobile phone service providers. The full appeals court said that mobile phone users know that when placing a call, the phone exposes its location to the nearest cell tower.

Urging the Supreme Court to review the case, EFF, along with the Brennan Center for Justice, the Center for Democracy & Technology, The Constitution Project and the National Coalition to Protect Civil Freedoms, cited a 2012 decision in which the Supreme Court held that global positioning system tracking is a search under the Fourth Amendment ( United States v. Jones, 132 S. Ct. 945 (2012)).

Cell-site location information “can give law enforcement far more information about a person’s movement than GPS tracking—cell phones go everywhere their owners go,” EFF said in a statement announcing the filing of the brief.

To contact the reporter on this story: Jimmy H. Koo in Washington at jkoo@bna.com

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For More Information

Text of EFF's brief is available at https://www.eff.org/document/eff-petition-graham-v-us

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