In 2015, a divided 4th U.S. Circuit Court of Appeals panel held that the government must obtain a search warrant before acquiring historical cell-site location information from a cellphone provider if the information sought covers “an extended period of time.”
On May 31, hearing the case en banc, the 4th Circuit vacated that decision, finding that a court order will suffice.
The panel upheld armed robbery convictions against defendants Aaron Graham and Eric Jordan, finding that the government acted in good faith, but said that it had violated the men’s Fourth Amendment rights. Going forward, the panel held, investigators would need a warrant supported by probable cause.
The full court saw things differently, noting no violation and opining that Supreme Court precedent mandates such a ruling, while logic compels it. Judge Diana Gribbon Motz, writing for the court, said that one day, the Supreme Court may limit or eliminate the third-party doctrine or that Congress may require a warrant for CSLI. But for now, without a change in controlling law, warrants are unnecessary.
“The Fourth Amendment does not protect information voluntarily disclosed to a third party because even a subjective expectation of privacy in such information is ‘not one that society is prepared to recognize as reasonable,’” wrote Motz, citing 1979’s U.S. Supreme Court case Smith v. Maryland. “The government therefore does not engage in a Fourth Amendment ‘search’ when it acquires such information from a third party.”
The appeals court’s 12-3 ruling—with partial dissents from judges James Wynn Jr., Henry Floyd and Stephanie Thacker—is in line with the other three circuits that have considered the question.
“Not one has adopted the Defendants’ theory,” Motz wrote.
University of South Carolina School of Law professor Susan Kuo was familiar with the appeals court’s decision and said that cell-site location information presents interesting privacy issues.
“Whether a warrant ought to be required—constitutionally or statutorily—depends, I think, on what our expectations of privacy are—actually and reasonably—with respect to CSLI,” Kuo said. “I don’t think that society has reached a consensus on this issue.”
Wrong place, right time
In 2011, Graham and Jordan were arrested for a string of commercial robberies in the Baltimore area. Among the mountain of evidence recovered by police were two cell phones used by the men.
A magistrate ordered Sprint/Nextel to disclose the identification and addresses of cellular towers related to the use of the defendants’ phones, pursuant to the Stored Communications Act, for a series of dates.
To access these records, the government must demonstrate either probable cause or “specific and articulable facts showing that there are reasonable grounds to believe that … the records … are relevant and material to an ongoing investigation.”
At trial, those records, obtained under the second prong, were used to show that the pair was in the vicinity of several of the robberies around the time they took place. A jury subsequently convicted both men. Graham was sentenced to 147 years in prison while Jordan, the getaway driver, received 72 years.
On appeal, the men argued that the communications act violates the Fourth Amendment by allowing the government to unconstitutionally collect their private information.
No ‘voluntary conveyance’
Senior Judge Andre Davis and Judge Stephanie Thacker agreed with Graham and Jordan; Motz was the dissenter.
The panel found that ordering a provider to hand over extended records is a search under the Fourth Amendment because “society recognizes an individual’s privacy interest in her movements over an extended time period.”
In one case cited by the majority, U.S. v. Jones, the court found that the privacy interests affected by long-term GPS monitoring “apply with equal or greater force to historical CSLI for an extended time period.”
“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations,” Davis wrote.
The court went on to say that examining CSLI affects an individual’s “interests in both the privacy of her movements and the privacy of her home,” because cellphones are often kept on one’s person and taken into areas—such as homes—that are not accessible by car or truck.
The panel declined to apply the third-party doctrine to Graham, asserting that cellphone users do not voluntarily convey their location and have no idea which cell sites are receiving the information. The user, the court held, does not, therefore, assume any risk of disclosure to law enforcement.
“When a cell phone receives a call or message and the user does not respond, the phone’s location is identified without any affirmative act by its user at all—much less, ‘voluntary conveyance,’” Davis wrote.
In her dissent, Motz wrote that if the passage of time shows that her colleagues have struck the proper balance between technology and privacy, it would be because the Supreme Court “revises its decades-old understanding of how the Fourth Amendment treats information voluntarily disclosed to third parties.”
Wrote Davis: “If the Twenty-First Century Fourth Amendment is to be a shrunken one, as [Judge Motz in dissent] proposes, we should leave that solemn task to our superiors in the majestic building on First Street and not presume to complete the task ourselves.”
Again, the court did ultimately find that since the government relied in good faith on the Stored Communications Act, the records should not be suppressed.
Round 2
In penning the most recent opinion, Motz noted that the only issue the full court was considering was the portion of the government’s investigation that led to the release of the cell-site information that indicated which cell towers transmitted signals when the defendants used their phones to make and receive calls and texts.
It is important, Motz wrote, to assess whether a Fourth Amendment search—one that occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable—occurred here.
Here, the state activity being challenged was the acquisition of records from a phone company.
The court found that cell-site information is created and maintained in the normal course of Sprint/Nextel’s business, adding that the defendants themselves acknowledge that service providers maintain such records by “technical and practical necessity.”
“The government did not surreptitiously view, listen to, record, or in any other way engage in direct surveillance of Defendants to obtain this information,” Motz wrote. She added that cell-site information, despite the defendants’ suggestion, cannot place one within his or her home, but only within a 4-square-mile area within which a person used his or her cell phone. This differentiates, she said, cases cited by the defense in which direct government surveillance was involved.
According to Smith and under the third-party doctrine, the court found, an individual has “no legitimate expectation of privacy” in information voluntarily submitted to a third party. Supreme Court case U.S. v. Miller, Motz wrote, holds that by “revealing his affairs to another,” an individual “takes the risk … that the information will be conveyed by that person to the Government.”
Judge J. Harvie Wilkinson III concurred in a separate opinion, emphasizing his concern that requiring probable cause and a warrant “needlessly supplants the considered efforts of Congress with an ill-considered standard of our own.” A world of “total privacy and perfect security” no longer exists, he said, and the legislature must play a role in determining a future of “hard tradeoffs and compromises.”
“In my view, striking a balance in an area rife with the potential for mass casualty cannot leave democracy out in the cold,” Wilkinson wrote. “Courts must continue to play a vital role in Fourth Amendment interpretation, but in large matters of life and death the people’s representatives must also play their part.”
The three dissenters, led by Wynn, believe the majority misunderstands the third-party doctrine and what it means to voluntary convey information.
Wynn offered a scenario,
“A customer buys a cell phone. She turns it on and puts it in her pocket. With those acts, says the majority, she has ‘voluntarily conveyed’ an unbounded set of personal location data to her service provider, all of which is unprotected by the Fourth Amendment.”
According to Wynn, in both Miller and Smith—and other cases which could bind the court—some action indicated that the submitter knew what information he was submitting and acted to submit it.
Someone, for instance, dialed a set of numbers on a phone; typed a particular URL into an Internet browser and pressed enter; signed a credit card receipt.
Here, Wynn questions how much cellphone users know about their CSLI and contends that they are unaware that they are conveying it.
“Only time will tell whether our society will prove capable of preserving age-old privacy protections in this increasingly networked era,” Wynn wrote. “But one thing is sure: this Court’s decision today will do nothing to advance that effort. I dissent.”
Motz offered that the defendants assumed the risk that the phone company would make a record “of the information necessary to accomplish the very tasks they paid the phone company to perform.”
“They cannot now protest that providing this essential information was involuntary,” she wrote.
Megan Skelton, a federal public defender representing Graham and Jordan, has said that she will ask the Supreme Court to review the en banc decision because of differences of opinion among the circuits regarding some underlying issues.
Kuo believes it’s a long shot because, thanks to the en banc decision, there exists no conflict between the appeals courts.
“Another reason for granting review on a writ of certiorari is a conflict between a U.S. court of appeals decision and U.S. Supreme Court decisions on an important federal question,” Kuo said. “By all accounts, the 4th Circuit’s decision in Graham is in accord with the Supreme Court’s third-party doctrine.”
The 66-page decision is U.S. v. Graham (Lawyers Weekly No. 001-094-16). The full text of the opinion is available online at sclawyersweekly.com.
Follow Heath Hamacher on Twitter @SCLWHamacher