Police do not need a search warrant to get the cellphone-tower records of suspected criminals in an effort to track down their whereabouts when the crime was committed, a federal appeals court ruled Tuesday in upholding the convictions of two Baltimore bank robbers.
Individuals have no reasonable expectation of privacy in the business records kept by the cellphone service companies they use, the 4th U.S. Circuit Court of Appeals said, adding that service providers are “third parties” in legal parlance.
As a result, the Constitution’s Fourth Amendment prohibition on unreasonable searches does not apply and a warrant is not needed, the full 4th Circuit added in its 12-3 decision reversing a ruling last year by a three-judge panel.
The majority of the full 4th Circuit cited the U.S. Supreme Court’s 1979 decision that police do not need a warrant before getting from telephone companies the call records of users of landline telephones. In Smith v. Maryland, the high court said the customers had voluntarily exposed their calling history to the company and thereby “assumed the risk” that the company would disclose the information to investigators without their need to obtain a search warrant.
The 4th Circuit said the cellphone contracts of the 21st century are no different than the landline service of the 20th for Fourth Amendment purposes.
“A cellphone user voluntarily enters an arrangement with his service provider in which he knows that he must maintain proximity to the provider’s cell towers in order for his phone to function,” Judge Diana Gribbon Motz wrote for the majority. “Whenever he expects his phone to work, he is permitting – indeed requesting – his service provider to establish a connection between his phone and a nearby cell tower. A cell phone user thus voluntarily conveys the information necessary for his service provider to identify the CSLI [cell site location information] for his calls and texts.”
Looking to Congress
In August, the three-judge panel found a warrant was needed but upheld the convictions of Aaron Graham and Eric Jordan, saying the police who sought the incriminating location records had subpoenaed the cellphone service providers in good faith under a federal law, the Stored Communications Act.
A U.S. District Court jury in Baltimore had convicted Graham and Jordan in May 2012 of having committed a series of armed robberies in and around the city in early 2011. They were sentenced to prison terms of 147 and 72 years, respectively.
The evidence against them included records from telecom service provider Sprint/Nextel indicating the location of cellphone towers the men used in placing or receiving calls or text messages at or about the time of the robberies.
Police had obtained the records from Sprint/Nextel via subpoena under the Stored Communications Act and not by a warrant.
The full 4th Circuit, in upholding the convictions, said it was mindful of the privacy concerns raised due to the ubiquitous use of cellphones. However, these concerns must be addressed either by the Supreme Court or Congress, as judges remain bound by the high court’s Smith decision.
“We recognize the appeal – if we were writing on a clean slate – in holding that individuals always have a reasonable expectation of privacy in large quantities of location information, even if they have shared that information with a phone company,” Motz wrote. “But the third-party doctrine does not afford us that option. Intrinsic to the doctrine is an assumption that the quantity of information an individual shares with a third party does not affect whether that individual has a reasonable expectation of privacy.”
The 4th Circuit’s case involved collection of cellphone records from service providers and did not address the constitutionality of the controversial “Stingray” technology that enables police to track cellphone calls with cell-tower simulators.
Maryland U.S. Attorney Rod J. Rosenstein, who argued the case on behalf of the federal government, said Tuesday the 4th Circuit’s decision is in line with rulings of other federal appellate courts.
He added that police in this case acted with court oversight, as the Stored Communications Act requires law enforcement to secure a judge’s order, akin to a subpoena, for the service provider’s cell-tower records.
“There is judicial supervision,” Rosenstein said. “There is judicial oversight.”
But Judge James A. Wynn Jr., in a scathing dissent, said individuals generally do not know that by turning on their cellphones they have “voluntarily conveyed an unbounded set of personal location data to [their] service providers, all of which is unprotected by the Fourth Amendment.”
Wynn noted law enforcement gathered 221 days’ worth of information and about 29,000 location data points for Graham and Jordan without the need to secure a search warrant. Such an unencumbered search could permit the government to ascertain an individual’s political and religious beliefs, sexual habits and other personal information, Wynn said.
“By acquiring vast quantities of defendants’ location information, spanning months, without defendants’ consent, the government infringed their reasonable expectations of privacy and thereby engaged in a search,” Wynn wrote. “Only time will tell whether our society will prove capable of preserving age-old privacy protections in this increasingly networked era. But one this is sure: This court’s decision today will do nothing to advance that effort.”
Judges Henry F. Floyd and Stephanie D. Thacker joined Wynn’s dissent.
Privacy under siege?
Nathan Wessler, an American Civil Liberties Union attorney, assailed the 4th Circuit’s ruling, saying it “fails to take account of people’s real expectations of privacy in this extraordinarily sensitive data tracking of our movements over time.”
“The majority seems to think it was bound by Supreme Court cases of the 1970s,” added Wessler, with ACLU’s Speech, Privacy and Technology Project. “Those decisions just don’t apply to the voluminous and involuntarily created location records that we’re talking about here.”
The ACLU had urged the 4th Circuit to rule a search warrant is needed for cellphone-tower records.
Maryland Federal Public Defender James Wyda, whose office represents Graham and Jordan, did not return a telephone message Tuesday seeking comment on the 4th Circuit’s decision and whether he and his clients will seek review by the Supreme Court.
Judge J. Harvie Wilkinson III, in an opinion concurring with the majority, said Congress should set the proper balance between the privacy of cellphone users and the needs of law enforcement to prevent crime and terrorism.
“In my view, striking a balance in an area rife with the potential for mass casualty cannot leave democracy out in the cold.” Wilkinson wrote. “Courts must continue to play a vital role in Fourth Amendment interpretation, but in large matters of life and death the people’s representatives must also play their part. …We face a future of hard tradeoffs and compromises, as life and privacy come simultaneously under siege.”
Besides Wilkinson, Motz was joined in her majority opinion by Chief Judge William B. Traxler Jr., Paul V. Niemeyer, Robert B. King, Roger L. Gregory, Dennis W. Shedd, Allyson K. Duncan, G. Steven Agee, Barbara Milano Keenan, Albert Diaz and Pamela A. Harris.
The 4th Circuit issued its published decision in United States of America v. Aaron Graham and Eric Jordan, No. 12-4659.