In another case where the courts are forced to deal with how we use technology in everyday life, the 4th Circuit Court of Appeals has ruled that law enforcement do not need a warrant to search location data on a suspect's phone. By a 12 to 3 vote, the appellate court judges found that phone records that track location are not considered a “search” under the Fourth Amendment.
Defendants Aaron Graham and Eric Jordan were convicted for their participation in a series of armed robberies. Prosecutors used cell-site location information (CSLI) from the defendants' phone to place them in the vicinity of the armed robberies. A majority of the judges found that the government had violated the defendants' Fourth Amendment rights against unreasonable search and seizure. The government moved for a rehearing, which was granted. On rehearing, the appellate court found that the acquisition of historical CSLI from the phone provider did not violate the Fourth Amendment.
The court distinguished this case from prior Supreme Court cases. According to the decision, the question is “whether the government invades an individual's reasonable expectation of privacy when it obtains, from a third party, the third party's records, which permit the government to deduce location information.” Under the third-party doctrine, an individual does not have a legitimate expectation of privacy in information that they have voluntarily turned over to a third party.
The defendants exposed information to the phone company's cell towers in the ordinary course of business. Each time the defendants made a phone call or sent a text message, Sprint/Nextel recorded the cell towers used to transmit that information. The phone company records were necessary to route the phone calls and texts. Therefore, the defendants assumed the risk that their phone company would disclose the location information to the government.
A number of privacy rights groups filed briefs in support of Graham, including the Electronic Frontier Foundation (EFF); the American Civil Liberties Union; and the Center for Democracy & Technology. According to the EFF, the data points could reveal a lot of information about the defendants and their daily lives, including when they “were home and when they left home, when their travel patterns changed from the norm, and even that Mr. Graham's wife was pregnant. This cell site location information (CSLI) was generated every time the defendants' phones tried to connect with a cell tower to send or receive data.”
A staff attorney with the ACLU's Speech, Privacy, and Technology Project says the strongly worded dissent may be a sign that the Supreme Court will eventually have to tackle these complex technology issues. “In virtually every one of these cases, there have been very strong dissents,” said Nate Wessler. “That in itself is a very strong message to the Supreme Court.”
Last year, a Virginia Beach Circuit Court judge drew the line on mobile phone access between producing a fingerprint and producing a passcode. In Virginia v. Baust, Judge Steven C. Frucci found that a passcode is testimonial and protected under the 5th Amendment. However, a fingerprint is a physical characteristic, and a criminal defendant could be forced to provide a fingerprint to unlock their phone.