A panel of judges ruled 9-2 in the 11th District U.S. Court of Appeals in Atlanta that cell phone customers do not have a reasonable expectation of privacy concerning searches of phone records. The Tuesday, May 5th ruling concerns the case of Miami resident, Quartavious Davis, who was convicted of several felonies, including robbery and possession of a firearm in 2012, and sentenced to 162 years in prison. During the investigation, among other key pieces of evidence was 67 days worth of Davis’s phone records from carrier Metro-PCS that included 11,606 phone records in total. These records were in addition to other condemning evidence, including surveillance camera footage that also implicated Davis. Davis’s appeal centered on whether or not the police’s warrantless acquisition of phone records violated his 4th Amendment rights toward illegal search and seizure. In the majority ruling, Judge Frank Hull disagreed with the 4th Amendment claim, writing that “Davis can assert neither ownership nor possession of the third-party’s business records he sought to suppress. Instead, those cell tower records were created by MetroPCS, stored on its own premises, and subject to its control.” The ruling essentially gives police the ability to acquire records from cell towers without requiring a warrant.
Even though the ruling was based on established precedent, some experts are questioning whether or not the laws in manners such as this need to be updated. Although this verdict in the 11th Circuit concurs with that of similar decisions in cases from 3 other Circuits, all in favor of authorities, Davis’ case is a reversal from a 2-1 ruling in his favor in the 11th Circuit last year. After the ruling, the court revisited the case with a larger panel of judges and concluded with Tuesday’s decision. In all of the appellate decisions, the courts cited the 1979 Supreme Court decision of Smith v. Maryland as the established precedent. It is also the case that the U.S. Government uses to justify the NSA spying program that was leaked by Edward Snowden in 2013.
Critics of the ruling look to the 2012 Supreme Court decision of United States v. Jones, in which the Court unanimously decided that placing GPS tracking devices on vehicles without a warrant to nearly always be in violation of the 4th Amendment. Although this legal disparity is why the police rely heavily on cell phone record seizures, some believe that this issue should still make its way to the Supreme Court. The fact that the 11th Circuit reversal runs in accordance with the other 3 federal appeals makes the odds of the Court adopting the case to be slim. Former prosecutor and 4th Amendment expert Orin Kerr had mixed feelings on the ruling, saying “Granted, I want there to be a circuit split to get the case up to the Supremes. That leaves me in an odd position: Although I think a judge should follow Smith, I also kinda want a lower court to not follow precedent in order to tee up the issue for the Supreme Court.”
Despite the judicial consensus, there may be enough rumbling to vault the case to the Supremes regardless. Both some of the concurring judges and the 2 dissenting judges all voiced concerns about the antiquity of the analog-era Smith ruling, and the modern-day ubiquity of 3rd party data collection. In her dissent, Judge Beverly Martin writes, “While I admire the majority’s attempt to cabin its holding to the technology of five years ago, its assurances in this regard seem naïve in practice. As a result of today’s decision, I have little doubt that all government requests for cell site location data will be approved, no matter how specific or invasive the technology.” Although ultimately ruling with the majority, Judge Robin S. Rosenbaum agreed that Martin is right to raise her objections, stating that “In our time, unless a person is willing to live ‘off the grid,’ it is nearly impossible to avoid disclosing the most personal of information to third-party service providers on a constant basis, just to navigate daily life.” Rosenbaum considered the amount of information that authorities could access without a warrant to be “nothing less than chilling.” Davis’s attorney, Nathan Freed Wessler from the American Civil Liberties Union (ACLU), also cites the need to consider updating the law, saying that the “dissenting judges recognized outdated legal doctrines from the analog age should not be mechanically extended to undermine our privacy rights in the voluminous digital records that come with modern life.”
Forbes – Kate Vinton
Ars Technica – David Kravets