This fall the Supreme Court will decide whether to hear an appeal that addresses the privacy each of us has in information our cellphones exchange with the network that reveals our movements over time.
The matter comes to the Court in an appeal by Quartavious Davis, an Alabama man who was convicted in 2011 of a string of seven armed robberies in Miami, Florida that netted him a sentence of 162 years in prison. Federal prosecutors tied Davis to the heists—which included robbing a pharmacy, an auto parts store, a beauty salon, and a fast food restaurant—in part from transmissions between his cellphone and the towers it transmitted to as he moved about town.
Prosecutors obtained the cell site data pursuant to an order from a federal magistrate judge that authorized them to review Davis’ phone location for a period of 67 days in September and October of 2010 that straddled the heists.
According to court papers, the records, which prosecutors obtained from MetroPCS, Davis’ service provider, revealed 11,606 points of information about his whereabouts, including calls he allegedly placed to and received from co-conspirators.
At trial, Davis moved to exclude the location information, asserting that prosecutors obtained it without a search warrant. Prosecutors relied instead on the Stored Communications Act, a federal law that authorizes law enforcement to obtain records a magistrate deems relevant to an ongoing criminal investigation.
The problem, Davis asserts, is that the government’s obtaining the location data constituted a search within the meaning of the Fourth Amendment. That required prosecutors to obtain a warrant supported by probable cause, which means prosecutors would have had to demonstrate to a judge a reasonable basis for believing a crime had been committed.
The distinction matters to Davis, who was sentenced at age 22 and faces the rest of his live in prison, but also to anyone who uses a cellphone, which is to say nearly all of us. Ninety-two percent of American adults own a cellphone or smartphone, according to a study published in August by the Pew Research Center. And 90 percent of cellphone owners say they frequently carry their phone with them.
Cell site information reveals an abundance of information about us. As Justice Sotomayor wrote in 2012 in a case that found the government’s attaching a GPS device to a vehicle for 28 days to be a search within the meaning of the Fourth Amendment, “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.”
Davis’ appeal presents the Court with an opportunity to revisit the so-called third-party doctrine, which holds that you lack a reasonable expectation of privacy in information you disclose voluntarily to third parties. The approach, which traditionally applied to things like a suspect’s bank records, makes less sense in an age in which, as Justice Sotomayor noted in the concurrence cited above, “people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”
The Court has recognized as much. Last year the justices ruled unanimously that police may not, without a warrant, search information on a cellphone from someone who has been arrested. Writing for the Court, Justice Roberts noted:
“Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cellphone, with all that it contains, who is the exception. According to one poll, nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower.”
In Davis’ case, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit ruled that the government violated his rights under the Fourth Amendment by obtaining the cell site location records without a warrant. Still, the panel sided with the trial judge and upheld the conviction because prosecutors relied in good faith on the magistrate’s order.
By a vote of 6 to 5, the entire Eleventh Circuit later reversed the panel, holding that the government did not violate the Fourth Amendment when it obtained the location data because Davis had no reasonable expectation of privacy in records held by his service provider.
The ruling set up a split among federal appeals courts. The U.S. Court of Appeals for the 4th Circuit ruled in August that the government’s accessing cell site data constitutes a search under the Fourth Amendment. That makes the case ripe for review by the Supreme Court, Davis contends. According to the Electronic Frontier Foundation, which filed a friend-of-the-court brief urging the Court to decide the case:
“Given the prevalence of cellphones and smartphones, and the increasing number of law enforcement requests for this sensitive information, this case thus presents a question of compelling national importance. The number of Americans promised that [cell site location information] remains private and accessible to law enforcement only with the protections of a search warrant is increasing. Yet, this legal protection is not uniform, and the federal courts in particular have issued conflicting opinions on the topic, leaving the public and law enforcement in limbo.”
The number of requests by law enforcement for location data is rising. According to figures cited by EFF, AT&T projects it will receive nearly 76,000 requests for cell site location information this year from law enforcement, up 19% from a year earlier and just under the number of such requests received in 2012. Verizon is projecting a 55% increase in the number of so-called cell tower dumps, a majority of which, EFF observes, occur without a warrant.
Note that Davis’ appeal ties to historical location data. Several states already require police to obtain a warrant before tracking a cellphone in real time. This chart from 2011 will give you a sense of how long your cellular provider retains a record of towers used by your phone.
For the Court to take up Davis’ case, at least four justices will have to vote to hear the appeal. In addition to an opportunity to unify the circuits, the justices could use the appeal to clarify the standard for assessing the government’s conduct. Orin Kerr, a professor of law at George Washington University, says the Eleventh Circuit’s reasoning also may make the case worthy of review. As Kerr wrote in The Washington Post following the appeals court decision:
“Instead of the… rule of a warrant, the court begins with general balancing. It’s important to catch criminals, the court reasons, and the statute has some good protections given that this wasn’t such an invasive practice. So on the whole the government’s conduct based on reasonable suspicion seems reasonable and therefore constitutional.
This alternative holding is a major development, I think. It’s at odds with the usual rule that a criminal search requires a warrant, and instead replaces it with a totality of the circumstances inquiry into whether the criminal search was the kind of thing that we would generally say is good or would generally say is bad. There’s not only no warrant requirement, there’s no probable cause requirement: It’s just a free-floating reasonableness inquiry.”
According to the Reporters Committee for Freedom of the Press, allowing warrantless access to cell site data also undermines freedoms guaranteed by the First Amendment. “In part because location data can be so revelatory, journalists frequently go to great lengths to ensure that the locations where they meet their sources are kept private, and that their communications are confidential,” the group writes in a friend-of-the-court brief.
From precedent, we know the justices are paying attention to the privacy implications of technology. In that regard, they seem likely to read a concurrence by Judge Robin Rosenbaum, a member of the Eleventh Circuit who, despite finding the search of Davis’ location data reasonable under the Stored Communications Act, expressed concern.
“In our time, unless a person is willing to live ‘off the grid,’ it is nearly impossible to avoid disclosing the most personal of information to third-party service providers on a constant basis, just to navigate daily life,” Rosenbaum wrote. “And the thought that the government should be able to access such information without the basic protection that a warrant offers is nothing less than chilling.”