A federal appeals court ruled in August the government needs a warrant to seek and inspect cell-site location information or else the government is violating the Fourth Amendment. Now, the government has requested the appeals court reconsider its decision.
In a filing [PDF], the government chastises the Fourth Circuit Court of Appeals and argues the appeals court disregarded the “precedent of this court and the Supreme Court,” when it ruled a section of the Stored Communications Act “unconstitutionally authorizes courts to issue orders for historical cell-site location information.”
The decision flew in the face of the “well-established third-party doctrine,” which is decades-old and hold individuals voluntarily give up their information when they use services provided by banks or telecommunications companies.
The case involves two appellants, Aaron Graham and Eric Jordan, who were convicted of offenses stemming from a series of armed robberies. They challenge “testimonial and documentary evidence relating to cell site location information” from their “cell phone service provider.”
The appeals court held, in a divided opinion [PDF], that “the government conducts a search under the Fourth Amendment when it obtains and inspects” a cell phone user’s historical cell phone location data.
“Examination of a person’s historical [cell phone location information] can enable the government to trace the movements of the cell phone and its user across public and private spaces and thereby discover the private activities and personal habits of the user. Cell phone users have an objectively reasonable expectation of privacy in this information. Its inspection by the government, therefore, requires a warrant, unless an established exception to the warrant requirement applies,” the appeals court added.
The majority also determined a search occurs when the government obtains records for an “extended period,” such as 14 days or more. To which, the government snarks, “The point between zero and 14 days at which obtaining cell-site records becomes a search remains unclear.”
Another aspect the government takes great issue with is the fact that cell-site location data is not “voluntarily conveyed.” A user has no requirement to “actively submit any location-identifying information when making a call or sending a message.”
Clearly irritated government attorneys maintain the appeals court disregarded “undisputed evidence that cell phones cannot work unless the service provider knows which cell tower to use, and that Sprint/Nextel informed customers that it collected their location information.”
However, the appeals court noted the policy for Sprint/Nextel only states information about a phone’s location is collected. It does not say the data may be passed on to the government.
The U.S. government clings to a more than thirty-five year-old Supreme Court precedent known as Smith v. Maryland.
As the Electronic Frontier Foundation has noted, “It’s doubtful the justices would have predicted that their narrow decision upholding the warrantless collection of the phone numbers one person dialed over three days would be stretched to justify forms of electronic surveillance that would have been the stuff of science fiction in 1979.”
“Unfortunately, Smith has been used to justify all sorts of surveillance, from the FBI seeking Twitter account information and the police tracking a cell phone’s past locations to the NSA’s bulk collection of telephone metadata and Internet communications.”
But courts are increasingly persuaded by the argument technology is so different today that Americans do expect privacy and have right to Fourth Amendment protection.
In June 2014, the Eleventh Circuit Court of Appeals ruled “cell site location information is within the subscriber’s reasonable expectation of privacy.”
The Third Circuit Court of Appeals ruled around this same time, “It is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information.”
“When a cell phone user makes a call, the only information that is voluntarily and knowingly conveyed to the phone company is the number that is dialed, and there is no indication to the user that making that call will also locate the caller.”
Judge Richard Leon of the U.S. District Court for the District of Columbia wrote, when he ruled against the NSA’s phone records surveillance program, “People in 2013 have an entirely different relationship with phones than they did thirty-four years ago. As a result, people make calls and send text messages now that they would not (really, could not) have made or sent back when Smith was decided.”
In contrast to surveillance involving pen registers deemed constitutional by Smith v. Marlyand, he noted the metadata program involves “creation and maintenance of a historical database containing five years’ worth of data. And I might add, there is the very real prospect that the program will go on for as long as America is combatting terrorism, which realistically could be forever!”
While the focal point of that decision was not cell-site location information, it still points to the stark reality U.S. courts increasingly find the government to be pushing flawed legal arguments in order to justify unconstitutional activity in violation of citizens’ privacy.