Cell Phone Location Data Declared Non-Private, No 4th Amendment Rights

The 4th Circuit Court of Appeals, in U.S. v Graham, Case No. 12-4659,  (4th Cir. May 31, 2016, en banc) (Available Here) ruled that the government need not obtain a warrant to seize a defendant’s cell phone location records, which showed the historic path of defendant’s location.  Defendant argued that a court-authorized warrant was required for this personal data.

The Government’s investigation obtained historical cell-site location provider information (CSLI) from Defendants’ cell phone This historical CSLI data indicated which cell tower – usually the one closest to the cell phone – transmitted a signal when the Defendants used their cell phones to make and receive calls and texts. The Government used the historical CSLI at Defendants’ trial to place them in the vicinity of the armed robberies when the robberies had occurred.

The Appeals Court stated that Supreme Court precedent mandates this conclusion.  The Supreme Court has long held that an individual enjoys no Fourth Amendment protection “in information he voluntarily turns over to [a] third part[y] .” Smith v. Maryland, 442 U.S. 735, 743-44 (1979). This rule — the third-party doctrine — applies even when “the information is revealed” to a third party, 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.” United States v. Miller, 425 U. S. 435, 443 (1976).

The Fourth Amendment ensures that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. Amend. IV.

As the Sprint/Nextel custodian of the CSLI records testified at trial, CSLI is created and maintained in the normal course of Sprint/Nextel’s business.

Government had to apply to a federal court for an order directing Sprint to disclose the CSLI records. The Stored Communications Act (SCA) provides that, to gain access to even these non-content records, the Government must demonstrate either probable cause for a warrant or “specific and articulable facts showing that there are reasonable grounds to believe that the records are relevant and material to an ongoing criminal investigation” for a court order. 18 U.S.C. § 2703(c), (d) (2012).

In some cases, the government did unconstitutionally collect private information. In United States v. Karo, 468 U.S. 705, 714-15 (1984), for instance, the Drug Enforcement Agency placed a beeper within a can of ether and received tracking information from the beeper while the can was inside a private residence.  Similarly, in Kyllo, 533 U.S. at 34-35, the Department of the Interior used a thermal imager to gather “information regarding the interior of the home.” And in United States v. Jones, 132  S. Ct. 945, 948-49, 954 (2012), the FBI and local law enforcement agency secretly installed a GPS tracking device on a suspect’s vehicle and monitored the vehicle’s movements for four weeks.  These were all held to be violations of the Fourth Amendment’s right to be free of unreasonable searches by the government.

However, the Court of Appeals held that, with respect to CSLI data, the Supreme Court’s reasoning in Smith v. Maryland, 442 U.S. 735, 743-44 (1979) controls. There, the defendant challenged the government’s use of a pen register — a device that could record the outgoing phone numbers dialed from his home telephone. Id. at 737. The Court held that the defendant could “claim no legitimate expectation of privacy” in the numbers he had dialed because he had “voluntarily conveyed” those numbers to the phone company by “‘expos[ing] that information to” the phone company’s “equipment in the ordinary course of business.” Id. at 744.

Three other Appeals Courts have held that CSLI data is not protected by the Fourth Amendment.  United States v. Carpenter, Nos. 14-1572/1805, 2016 WL 1445183, at *4-6 (6th Cir. Apr. 13, 2016); United States v. Davis, 785 F.3d 498, 511-13 (11th Cir.); and In re Application of U.S. for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013).  

Another Appeals Court stated, with respect to the SCA § 2703 (d) order, “does not require the traditional probable cause determination” necessary for a warrant. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’ n Serv. to Disclose Records to Gov’ t, 620 F.3d 304, 313, 317 (3d Cir. 2010).

The Court in the present case stated that, outside the context of phone records, they have held that third-party communicated information relating to the sending and routing of electronic communications does not receive Fourth Amendment protection. United States v. Bynum, 604 F.3d 161, 164 (4th Cir. 2010).

Bynum held that it “would not be objectively reasonable” for a defendant to expect privacy in his phone and Internet subscriber records, including “his name, email address, telephone number, and physical address.” Although the Court had no occasion in Bynum to consider whether an individual has a protected privacy interest in his Internet Protocol (IP) address, several other Courts of Appeal have concluded that no such privacy interest exists. See United States v. Suing, 712 F.3d 1209, 1213 (8th Cir. 2013); United States v. Christie, 624 F.3d 558, 574 (3d Cir. 2010).

Internet users have no expectation of privacy in the IP addresses of the websites they visit.” United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008).

As the Sixth Circuit Court of Appeals recently recognized, CSLI is non-content information because “cell-site data — like mailing addresses, phone numbers, and IP addresses — are information that facilitate personal communications, rather than part of the content of those communications themselves.” Carpenter, 2016 WL 1445183, at *4.

Defendants expressed outrage at the amount of information the Government obtained (7 months of CSLI data and over 30,000 calls and texts).  The volume of collected data and the duration of the surveillance, rather than concern for legal principle, was the heart of Defendants’ arguments.

Defendants’ answer appeared to rest on a misunderstanding of the analysis embraced in the two concurring opinions in the Jones case. There, the concurring justices recognized a line between “short-term monitoring of a person’s movements on public streets,” which would not infringe a reasonable expectation of privacy, and “longer term GPS monitoring,” which would. Jones, 132 S. Ct. at 964 (Alito, J., concurring in the judgment).

However, society has no analogous expectations about the capacity of third parties to maintain business records.  For this reason, Justice Alito’s concern in Jones is simply inapposite to the third-party doctrine and to the instant case.

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