On Wednesday, a three-judge panel from the 4th Circuit Court of Appeals in Richmond, Virginia ruled that the Fourth Amendment requires law enforcement officials to obtain a warrant before searching historical location data from a person’s cell phone. The case involved defendants Aaron Graham and Eric Jordan, who were accused of several Baltimore-area robberies. The pair had already been arrested for one robbery, but police used Graham’s and Jordan’s wife’s cell phone location data from 221 days prior to link them to the robberies of several additional stores. The government argued that the third-party doctrine applied to their search, that the records belonged to the owners of the cellular towers and not the cell phone customers. Although officials obtained two court orders from magistrate judges under the Stored Communications Act, they did not obtain any warrants. Senior 4th Circuit Judge Andre Davis, along with Judge Stephanie Thacker, decided in a split 2-1 ruling that regarding the location data, “Its inspection by the government, therefore, requires a warrant, unless an established exception to the warrant requirement applies.”
The ruling is a victory for privacy advocates and adds ammunition to a petition that the ACLU, along with private attorneys sent to the Supreme Court last week to review the Atlanta-based 11th Circuit’s opposite ruling in May’s Davis v. the United States appeal. The split rulings mean it is very likely that the Court will hear the case in its upcoming session. Moreover, it adds an official dissent to what has been the established precedent, with several similar cases being judged in accordance with the 1979 Smith v. Maryland decision, considering data that phone companies receive to be the company’s property and not the property of the consumer. Smith is also the justification that the National Security Agency (NSA) has used for its domestic spying program. Wednesday’s decision is the first time a court has ruled that obtaining the records without a warrant to be unconstitutional, although the 11th Circuit reversed its own prior decision in the most recent Davis ruling. Adding additional fuel to the debate, critics of the Davis ruling say, is the Supreme Court’s 2012 United States v. Jones decision involving GPS records. The Court unanimously ruled that obtaining GPS records without a warrant to nearly always be in violation of the Fourth Amendment.
In his opinion, Judge Davis wrote that “The Stored Communications Act includes no direction on when the government should seek a warrant versus an order.” Davis also states in his opinion that “People cannot be deemed to have volunteered to forfeit expectations of privacy by simply seeking active participation in society through use of their cell phones,” an apparent contradiction to the rationale behind the 11th Circuit’s conclusion. In a statement, ACLU attorney Nathan Freed Wessler said, “Cell phone location records can reveal some of the most private details about our lives by showing where we go and who we spend time with. Requiring a warrant for access to this information is an important protection against unjustified government intrusions.” The Supreme Court will have an opportunity to decide where the reasonable expectation of privacy begins and possibly ends, and for what purposes authorities can use such information as evidence in criminal proceedings.
For the time being, law enforcement in the 4th Circuit’s jurisdiction, which includes North Carolina, Maryland, South Carolina, and Virginia, will likely be required to obtain warrants before using the cell records as evidence in any criminal proceeding. Unfortunately for Jordan and Graham and despite the ruling for privacy advocates, Davis did allow the evidence in this case to stand, asserting that law enforcement’s reliance on the Stored Communications Act was a “good faith exception.” Dissenting Judge Diana Gribbon Motz believes that the Court will have to update its precedent in order for the 4th Circuit ruling to stand. Motz said in her dissent, “If the majority is proven right, it will only be because the Supreme Court revises its decades-old understanding of how the Fourth Amendment treats information voluntarily disclosed to third parties. Today the majority endeavors to beat the Supreme Court to the punch.”
Ars Technica – David Kravets
International Business Times – Kukil Bora
National Law Journal – Marcia Coyle
Washington Post – Orin Kerr