Caveat Vendor

Warrantless Cell Tracking Won’t Work . . . At Least Not in the Eleventh Circuit

June 13, 2014

Mary-Elizabeth Hadley

The Eleventh Circuit, in a decision earlier this week, held that subscribers have a reasonable expectation of privacy in historical cell site location information such that obtaining that data without a warrant violates the Fourth Amendment.  U.S. v. Davis, No. 12-12928 (11th Cir. June 11, 2014).
The records at issue were obtained by law enforcement from cell phone service providers pursuant to the Stored Communications Act, 18 U.S.C. § 2703(c), (d), a law with which loyal blog readers will be becoming very familiar from past posts.  Under the Act, the government can obtain electronic communication service records of subscriber services through a warrant or, as it did in this case, 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).
The Decision
After initially determining that the Fourth Amendment undeniably protects the contents of electronic communications, the three-judge panel turned to the issue of whether that protection extends to “the transmission itself” when that “reveals information” about the user’s location.

The court found the Supreme Court decision in United States v. Jones, 132 S. Ct. 945 (2012), instructive.  Jones involved location data generated by a global positioning system (“GPS”) tracking device which law enforcement attached to the vehicle of a suspected drug dealer.  The aggregation of data on the movements of defendants’ automobile established a reasonable expectation of privacy.  In the case of cell site location data, the Eleventh Circuit determined that “[s]uch a mosaic theory is not necessary to establish [an] invasion of privacy.”  The court explained:

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.

The court was unpersuaded by the government’s argument that cell site location data is less precise that GPS data, noting that the prosecutor utilized the information to place the defendant at the scene of the crimes.  According to the Eleventh Circuit, one has “a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute.”

Also unsuccessful was the government’s contention that the defendant had surrendered his expectation of privacy by exposing his cell site location to his service provider when placing the call.  The decision acknowledged the persuasive weight of the Supreme Court’s holding in Smith v. Maryland, 442 U.S. 735, 742-44 (1979), that telephone users have no subjective expectation of privacy in dialed telephone numbers contained in telephone companies’ records.  However, the court found that unlike with the numbers they dial, cell phone users do not “voluntarily and knowingly” share their location information with a cellular provider.  Accordingly, the subscriber does not lose his reasonable expectation of privacy in cell site location data, and a warrant must be obtained for the information.

A Circuit Split Emerges

As we have previously written, the Fifth Circuit reached the opposite conclusion last year.
Without fully explaining why the use of evidence in a criminal proceeding made the case before it distinguishable from the Fifth Circuit’s review of the government’s application for a court order, the Eleventh Circuit found that it need not review the reasoning of its sister circuit (or that of the Third Circuit in its pre-Jones decision, 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, 317-18 (3d Cir. 2010)).

Although the government’s ability to seek review of the Eleventh Circuit’s analysis may be limited by the fact that the court found no reversible error under the “good faith” exception to the exclusionary rule, it will likely have other opportunities to litigate the issue as federal courts continue to grapple with the amount of protection to afford cell phone data.

The Davis court’s attempt to distinguish between the provision of numbers dialed and location data on the ground that one is disclosed “voluntarily and knowingly” to the provider and the other is not seems less than clear and likely reflects an underlying discomfort  with the greater intrusion location data appears to represent.  Although not in direct conflict, the Supreme Court’s decisions in Jones (GPS) and Smith (phone numbers) have given rise to conflicting interpretations in the federal courts.  This latest decision may bring closer the day that the high court must resolve those differences, one way or the other.

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