Important New Opinion on Cell Phone Tracking

On Tuesday, the Eleventh Circuit ruled, en banc, that law enforcement may obtain historical cell site location information without a search warrant, using a court order based on less than probable cause. There’s a controversy over what legal standard should govern law enforcement access to location information, and the Eleventh Circuit’s ruling is likely to be influential in the debate. This post explains the issue and puts the new decision in context.

The traditional analysis. The traditional view of cell site location information has been (1) that the subscriber has no privacy interest in it, because it is voluntarily shared with the service provider in the course of using cell phone service; (2) that law enforcement access to such information is therefore regulated principally by the Stored Communications Act, 18 U.S.C. 2701 et seq., rather than the Fourth Amendment; and (3) that because location data are non-content records, they are available under the SCA through a court order based on a showing of specific and articulable facts providing reasonable grounds to believe that the data are relevant and material to a criminal investigation. See 18 U.S.C. § 2703(c)-(d).

The argument for Fourth Amendment protection. Defendants have sometimes argued that location information is inherently private in a way that other business records are not, and so should be protected by the Fourth Amendment. This view gained some momentum after the Supreme Court’s ruling in United States v. Jones, 565 U.S. __, 132 S. Ct. 945 (2012), regarding GPS tracking. Although the holding in Jones focused on the trespassory installation of tracking devices, several Justices suggested that at least long-term GPS tracking itself would constitute an intrusion on a reasonable expectation of privacy and so would implicate the Fourth Amendment. Defendants have sometimes contended that if there is a right of locational privacy as suggested in Jones, whether that right is compromised through GPS tracking or through cell site location information is immaterial, and a search warrant based on probable cause is necessary to do either one.

The split of authority. Starting on page 104 of my book about digital evidence, I summarize some of the leading cases in this area. They don’t all agree. A majority of courts have accepted the traditional business records analysis, but a few have ruled that the Fourth Amendment applies to cell site location information.

The Davis panel opinion. Among the most important of the decisions comprising the minority view was United States v. Davis, 754 F.3d 1205 (11th Cir. 2014). In that case, the government obtained the defendant’s cell site location information pursuant to a “reasonable grounds to believe” court order, then used the data to tie him to seven armed robberies. On appeal, the defendant contended that the government’s failure to use a search warrant violated the Fourth Amendment. A divided panel of the Eleventh Circuit, relying heavily on Jones, agreed. It ruled that “the government’s warrantless gathering of [the defendant’s] cell site location information violated his reasonable expectation of privacy,” and rejected the idea that a cell phone subscriber knowingly discloses his or her location to the service provider by obtaining and carrying a cell phone. However, the court ruled that the officers acted in good faith in obtaining the defendant’s cell site location information, and so declined to suppress the evidence.

The Davis en banc opinion. The government sought rehearing en banc, and the entire Eleventh Circuit reversed the panel on this issue. Framing the case as one about “government access to the existing and legitimate business records already created and maintained by a third-party telephone company,” the majority viewed the case as a straightforward application of the third-party doctrine of Smith v. Maryland, 442 U.S. 735 (1979) (finding no expectation of privacy in the numbers dialed on a telephone, as those numbers are voluntarily conveyed to the phone company). The court specifically opined that “cell users know that they must transmit signals to cell towers . . . [and so] are necessarily conveying or exposing to their service provider their general location within that cell tower’s range, and that cell phone companies make records of cell-tower usage.”

An emerging consensus? The Fifth Circuit has ruled in the same way. See, e.g., United States v. Guerrero, 768 F.3d 351 (5th Cir. 2014). The Sixth Circuit has ruled that real-time tracking using GPS data from a suspect’s cell phone does not implicate the Fourth Amendment, at least where the tracking lasts only a few days. United States v. Skinner, 690 F.3d 772 (6th Cir. 2012). And the Third Circuit has issued a somewhat confusing opinion concluding that historical location information generally may be obtained without a search warrant but that a court could require a warrant under some circumstances. In re Application of the United States, 620 F.3d 304 (2010). No federal court of appeals, other than the Davis panel, has ruled that cell site location information is generally protected by the Fourth Amendment.

Advice to officers. My advice to officers has been to use a search warrant to obtain cell site location information, because it is better to err on the side of caution. That continues to be my advice, even after Davis. Although the federal courts may be moving towards a consensus, they aren’t there yet, and some state courts have reached contrary conclusions. Furthermore, even when the lower courts generally agree on an issue, the Supreme Court is free to upset the apple cart, as it did, for example, in Arizona v. Gant, 556 U.S. 332 (2009) (ruling that a vehicle may not automatically be searched incident to the arrest of a recent occupant, despite nearly uniform lower court precedent to the contrary). It’s clear that the defendant in Davis will petition the Supreme Court for review, and there are other cases raising this issue on the Court’s doorstep as well. Bottom line, this is still an issue on which reasonable minds can differ, so I continue to believe that the safest course is to use a search warrant.

Further reading. Orin Kerr has thoughts on Davis here. The en banc opinion itself is here.

6 thoughts on “Important New Opinion on Cell Phone Tracking”

  1. It’s interesting to see this issue still not being resolved, considering how long we have had cell phones as a common product in our society (I would consider them “common” for the last 15 years at least, and now almost a necessity in our culture).

    My opinion has always been to obtain a SW if you have the PC to do so; why not? I know there is some hesitation because SWs are public record, but if it is an ongoing investigation courts routinely will seal that warrant until the conclusion so as not to alert the suspect that s/he is being tracked or otherwise investigated.

    I understand there are reasons a court order is desired some times (ease, privacy concerns related to the investigation primarily) but it seems like these days a court order is becoming less and less a tool for police to use, as there is a growing chance in our culture and society that these orders are going to be overturned. A warrant is a lot more secure, safe, and reliable.

  2. Strange to see Judge Martin call his opinion “dissent” even though it would seem to be more along the lines of an opinion “concurring in the result”…(also, because there is a “dissent,” I’m not sure it’s accurate to say the “entire Eleventh Circuit reversed the panel on this issue” since the vote on the issue was really 9-2)

  3. It seems disingenuous to me. To say that a person “voluntarily” provides information to a wireless company by the use of the phone may be true, but the communication between a phone and a tower does not rely only upon the voluntary making of a phone call. For instance, the IPhone apparently transmits a signal to towers even when turned off, allowing for location information to be ascertained. This does not appear to be “voluntary”.
    I suppose that simply having a mobile device or phone could be considered voluntary, but in today’s society, there are few people that do not have a cell phone. Under this theory, every one of those people has voluntarily consented to being monitored for location by the government, or its agents, at any time.
    I suspect, but do not know, that the government requires, or at least encourages, providers of mobile services to maintain this information for some period of time for this exact purpose. There does not seem to be a reason to maintain this information for any other purpose.

  4. The tracking of cellular devices is instrumental in law enforcement’s ability to preserve law and order in a society where almost everyone including criminals cannot separate themselves from their smart phones. It is also imperative in solving violent crimes, robberies, thefts, burglaries, auto thefts, and many other crimes.

    Apple is apparently working on an update to iOS that would require a user to put their password in to be able to turn the phone off. If the phone is turned off without using the password then the phone continues to communicate. Of course the battery could be removed, but removing a battery on an iPhone is not a fast process without destroying the resale value of the phone which is essentially the purpose of stealing it. Apple implemented iCloud lock to deter theft, but now services exist to bypass iCloud lock under the guise of helping to recover lost passwords. IMEIs can be blocked by US Carriers to prevent stolen phones from being activated on a cellular network, but the phone can be sold overseas to carriers that don’t use US blacklists. Plus the iPhone still holds value as the stolen phone can have iCloud lock bypassed and it can be used just with WIFI and an app like Pinger and other VOIP based companies that let you make and receive calls using the Iphone using WIFI without a cellular provider. Combine this with spoofing companies and small VOIP companies that are based in remote areas of the country that refuse to comply with search warrants issued by foreign jurisdictions, it is a mess.

    In some cases, Apple will claim that even with a search warrant to extract data from a phone, they don’t have the means to do so unless the person used iCloud backup on the phone. Forcing someone through a judicial process to provide the password is an issue yet to be resolved by the court due to 5th amendment issues. It may also be possible to force the suspect to use their fingerprint to unlock the device if it is interpreted to be like a key to a lock box.

    States are also starting to look at exigent circumstance searches being conducted by law enforcement in regards to carriers tracking phones when information is produced to justify an immediate danger to life. Some states are looking to create more restrictions on this important resource putting privacy above life and creating more complex laws in place complicating a cell phone providers ability to work with law enforcement.

    People that think law enforcement has an easy time tracking devices through carriers or the devices themselves are sadly mistaken. It is also a mistake to think that law enforcement does not appreciate the responsibility associated with attempting to gain access to personal information. The police should not be given carte blanche to search and track records without reasonable standards in place, but the assumption that law enforcement does not value the Constitutional rights of others is flawed. Our laws should provide firm sanctions including criminal penalties for those that use their position to gain this information without just cause, but criminals should not be able to hide evidence of crimes in a secret location untouchable by authorities even with a warrant.


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