“[T]he government’s warrantless procurement of the CSLI [cell-site location information] was an unreasonable search in violation of Appellants’ Fourth Amendment Rights,” a divided panel of the federal appeals court in Richmond has held, in conflict with its sister circuits, in a case where CSLI helped the prosecution establish the suspects’ location before and after robberies of fast food restaurants and other businesses. United States v. Graham, No. 12-4659 (4th Cir. Aug. 5, 2015). The Fourth Circuit covers Maryland, North and South Carolina, Virginia, and West Virginia.
Under the Stored Communication Act (“SCA”), 18 U.S.C. § 2703(c) and (d), the government can obtain electronic communication service records of subscriber services through a warrant or a court order. Obtaining a court order does not require probable cause and can be done if there are “reasonable grounds to believe that the… records or other information sought, are relevant and material to an ongoing criminal investigation.”
The Fourth Circuit found that “[e]xamination of a person’s historical CSLI can enable the government to trace the movements of the cell phone … and thereby discover the private activities and personal habits of the user.” It continued, “cell phone users have an objectively reasonable expectation of privacy in this information. Its inspection by the government, therefore, requires a warrant, unless an established exception to the warrant requirement applies.”
However, the Eleventh Circuit (covering Alabama, Florida, and Georgia) and the Fifth Circuit (covering Texas, Mississippi, and Louisiana) have held that historical CSLI is not protected by the Fourth Amendment because of the application of the third-party doctrine. Further, an en banc Eleventh Circuit found the government properly obtained a § 2703(d) order for the production of MetroPCS’s cell tower records for a bank robbery investigation. United States v. Davis, No. 12-12928 (11th Cir. May 5, 2015). The Eleventh Circuit explained:
For starters, like the bank customer in [United States v.] Miller [425 U.S. 435, 443 (1976)] and the phone customer in Smith [v. Maryland, 442 U.S. 735, 743-44 (1979)], Davis can assert neither ownership nor possession of the third-party’s business records he sought to suppress. Instead, those cell tower records were created by MetroPCS, stored on its own premises, and subject to its control. Cell tower location records do not contain private communications of the subscriber. This type of non-content evidence, lawfully created by a third-party telephone company for legitimate business purposes, does not belong to Davis, even if it concerns him. … More importantly, like the bank customer in Miller and the phone customer in Smith, Davis has no subjective or objective reasonable expectation of privacy in MetroPCS’s business records showing the cell tower locations that wirelessly connected his calls at or near the time of six of the seven robberies.
Although the Eleventh Circuit recognized that “the landscape of technology has changed” since Miller and Smith, it found the “cell tower method of call connecting does not require a different constitutional result just because the telephone company has decided to automate wirelessly and to collect the location of the company’s own cell tower that connected the calls.”
On July 29, 2015, defendant in Davis petitioned the U.S. Supreme Court for review of the Eleventh Circuit ruling upholding his conviction. In his petition, Mr. Davis argued that his case presents the pressing question of whether the Fourth Amendment protects against warrantless acquisition of CSLI.
For now, the standard applicable to requests for cellphone records likely will continue to vary based on where the data happens to be located. Jackson Lewis attorneys are available to advise companies on the scope of the Fourth Amendment and their rights in maintaining their confidential information on all of their business-related electronic devices.