Yesterday a federal
appeals court took an important step toward reining in government
snooping by
ruling that law enforcement agencies need a warrant to collect
cellphone location data. The case involved a robbery suspect,
Quartavious Davis, who was linked to various crime scenes through
data obtained from his cellphone company. The U.S. Court of Appeals
for the 11th Circuit concluded
that “cell site location information is within the subscriber’s
reasonable expectation of privacy” and “the obtaining of that data
without a warrant is a Fourth Amendment violation.”
This is the first time an appeals court has directly
addressed the issue in the context of a criminal prosecution, which
helps explain why Davis did not succeed in suppressing the evidence
against him. The appeals court ruled that the prosecution’s use of
his cellphone records was covered by the “good faith” exception to
the exclusionary rule.
The FBI obtained Davis’ records through a court order
authorized by the Stored Communications Act, which requires only
“reasonable grounds to believe” that the iinformation
sought is “relevant and material to an ongoing
criminal investigation.” A warrant, by contrast, requires “probable
cause” to believe that a search will discover evidence of a crime.
In deciding that the higher standard is appropriate for cellphone
location data, the 11th Circuit relied on the “privacy theory” of
the Fourth Amendment, which holds that the constitutional ban on
unreasonable searches extends beyond evidence collection that
intrudes on the target’s property. Since 1967 the Supreme Court has
used that theory to require warrants for wiretapping and other
surveillance methods that do not involve a physical
trespass.
By contast,
U.S. v. Jones, the 2012 decision in which the Supreme
Court held that tracking a suspected drug dealer’s whereabouts for
a month by attaching a GPS device to his car qualified as a search
under the Fourth Amendment, emphasized the trespass on the vehicle.
That decision
left open the question of whether obtaining similar information
through methods that do not require such a physical intrusion also
implicates the Fourth Amendment. But as the 11th Circuit noted
yesterday, at least five justices indicated
in Jones that a trespass is not required because
the crucial question is whether surveillance violates reasonable
expectations of privacy.
If anything, the appeals court said, cellphone records are
more revealing than the information at issue in Jones,
which was limited to the location of the supect’s car on public
roads. “One’s cell phone, unlike an automobile, can accompany its
owner anywhere,” the court noted. “Thus, the exposure of the cell
site location information can convert what would otherwise be a
private event into a public one. When one’s whereabouts are not
public, then one may have a reasonable expectation of privacy in
those whereabouts.…While committing a
crime is certainly not within a legitimate expectation of privacy,
if the cell site location data could place [Davis] near those
scenes, it could place him near any other scene. There is a
reasonable privacy interest in being near the home of a lover, or a
dispensary of medication, or a place of worship, or a house of ill
repute.”
The 11th Circuit rejected the government’s argument that
“Davis did not have a reasonable expectation of privacy because he
had theretofore surrendered that expectation by exposing his cell
site location to his service provider when he placed the call.”
During Davis’ trial a prosecutor conceded that he and an accomplice
“probably had no idea that by bringing their cell phones with them
to these robberies, they were allowing [their cell service
provider] and now all of you to follow their movements on the days
and at the times of the robberies.” If so, the appeals court said,
it is hardly reasonable to claim that Davis volunteered this
information. Since people generally are not even
aware that they are revealing their locations when they make calls
on their cellphones, and since such information is revealed even
when people answer calls from others, the idea that every cellphone
user is voluntarily sharing his whereabouts with the world is
implausible. Hence “Davis has not voluntarily disclosed his cell
site location information to the provider in such a fashion as to
lose his reasonable expectation of privacy.”
Here the appeals court is trying to get around the Supreme
Court’s “third
party doctrine,” which holds that “a person has no legitimate
expectation of privacy in information he voluntarily turns over to
third parties.” Under that doctrine, the government’s access to a
huge amount of
highly revealing information stored on remote computers is
completely unrestricted by the Fourth Amendment; it is subject only
to statutory limitations such as those imposed by the Stored
Communications Act. As Justice Sonia Sotomayor suggested
in Jones, a reconsideration of the third-party
doctrine is long ovderdue. But since such a reconsideration is
beyond the authority of an appeals court, the 11th Circuit instead
argues that cellphone location information falls outside the
doctrine because it is not shared knowingly and
willingly.
The problem with this approach is that people are becoming
increasingly aware, due partly to the publicity surrounding cases
like this one, that using a cellphone creates a trove of
information about their movements. Once that is a matter of common
knowledge, will the constitutional analysis change? Does a
reasonable expectation of privacy depend on ignorance of the ease
with which privacy can be violated?
If so, I guess we are only making things easier for the
government by reporting on this issue. Last year in
Reason, Ron Bailey
explained “how the surveillance state co-opted personal
technology.” More on cellphone tracking here.
from Hit & Run http://ift.tt/1oY7Fd4
via IFTTT