Eleventh Circuit: Warrant Required to Obtain Cell Site Location Information
The Eleventh Circuit ruled on June 11 that cell site location information—which can reveal the location of a cell phone user, based on his proximity to cell phone towers—is protected by the Fourth Amendment and can only be obtained with a warrant. That ruling sets the stage for continued battles over Fourth Amendment protections for location data, an area that has come under increasing scrutiny amid calls for Congress to update the 1986 law governing the protection of electronic information.
In United States v. Davis, the Eleventh Circuit held that the defendant’s Fourth Amendment rights were violated when the government obtained a court order for his cell site location information under 18 U.S.C. § 2703(d) of the Stored Communications Act, rather than pursuant to a search and seizure warrant. While warrants require the government to establish probable cause that the information sought will yield evidence of a crime, the government may obtain a § 2703(d) order upon the lesser showing of “specific and articulable facts” establishing reasonable grounds to believe the information is relevant to an investigation.
Prosecutors relied on the location records in Davis to establish that the defendant was in close proximity to scenes of six crimes with which he was charged. The court emphasized that the government had highlighted the location records at trial, noting the prosecutor’s statements during closing argument that the defendant “probably had no idea that by bringing [his] cell phone with [him] to these robberies,” he was allowing his cell phone provider “and now all of you to follow [his] movements on the days and at the times of the robberies. . . .”
The Eleventh Circuit found that the cell phone location records were protected by the Fourth Amendment’s warrant requirement, and thus could not be lawfully seized using a less exacting § 2703(d) order. In so holding, the court relied heavily on the Supreme Court’s 2012 decision in United States v. Jones, which held the use of a GPS tracking device to monitor a car is a search protected by the Fourth Amendment. As the Eleventh Circuit acknowledged, the majority opinion in Jones (authored by Justice Scalia) had relied on a “trespass” theory of the Fourth Amendment, which protects against physical government intrusions. But the Eleventh Circuit observed that Justice Scalia’s opinion in Jones did not foreclose a “privacy” theory of the Fourth Amendment (which other justices would have applied), under which non-physical intrusions can violate the Fourth Amendment.
Thus, the Eleventh Circuit found that despite the lack of any physical trespass by the government, the warrantless collection of Davis’s cell phone location records violated the Fourth Amendment was because Davis had a reasonable expectation of privacy in that information. It also dismissed the argument that Davis waived this expectation of privacy by exposing his location information to a third party—his cell phone service provider. The court found the defendant was unlikely to know he was disclosing historical location data to his provider, and thus had not disclosed his information “in such a fashion as to lose his reasonable expectation of privacy.”
Interestingly, the decision in Davis was authored by Judge David Sentelle of the United States Court of Appeals for the D.C. Circuit, who sat by designation on the Eleventh Circuit panel. Judge Sentelle’s opinion for the court in Davis took a far different tone than his dissent from the D.C. Circuit’s denial of en banc review in Jones, where he argued the defendant had “no reasonable expectation of privacy in any particular datum revealed by the GPS-augmented surveillance” of his car, nor in the aggregation of that data. In Davis, Judge Sentelle took pains to distinguish between reasonable expectations of privacy in a car and in a cell phone. While a car is typically “visible to the public,” a cell phone “can accompany its owner anywhere,” even into private places, he wrote. Accordingly, “even one point of cell site location data can be within a reasonable expectation of privacy.” Thus, “cell site location data is more like communications data than it is like GPS information” because it is “private in nature rather than being public data that warrants privacy protection only” when aggregated.
Notwithstanding its holding that the warrantless collection of cell phone location information violated the Fourth Amendment, the court in Davis declined to overturn the defendant’s sentence on that ground. Rather, the court found that the government had relied in good faith on the § 2703(d) order to obtain the data, and that, therefore, the exclusionary rule did not apply. Based on this conclusion, it is unlikely that the government will seek Supreme Court review of the court’s decision Davis.