Cell Tower Tracking Requires a Warrant, Federal Court Finds

A federal appeals court says that law enforcement officers must obtain a warrant based on probable cause before requiring a cell phone service provider to turn over a suspect’s location tracking information.  In a decision issued June 11, the 11th Circuit Court of Appeals held that the Fourth Amendment requires such a warrant when police seek cell phone location records from carriers.

“Cell site location information is within the subscriber’s reasonable expectation of privacy,” wrote Judge David Sentelle for a unanimous three-judge panel. “The obtaining of that data without a warrant is a Fourth Amendment violation.”

The court held that the “third party doctrine” explained by U.S. Supreme Court in 1979 in Smith v. Maryland does not apply because most people don’t know that their cell phones can act as tracking devices.  Because most people don’t understand their cell phones must reveal location to the phone company in order to work, they don’t knowingly or voluntarily turn over their cell-site records to a third party, in this instance their cellular service provider.   Thus, the court found, they have a reasonable expectation of privacy in their location histories under Smith v. Maryland.

In the case before the 11th Circuit, U.S. v. Davis, the government obtained four people’s cell phone location records from their wireless carrier over a 67-day period based on its assertion that the records were “relevant and material” to a robbery investigation, which is lower than the probable cause standard required by the Fourth Amendment.  For one suspect, Quartavious Davis, police obtained more than 11,000 location records.  Davis was convicted based largely on the cell phone location evidence, and he appealed.

Two other federal appeals courts, the Fifth and Sixth Circuits, have ruled that police can obtain cellphone location data without a warrant. The Third Circuit has held that federal magistrate judges have discretion to decide whether a warrant is required.  The split among the federal appeals courts makes it more likely that the U.S. Supreme Court will have to consider the issue in the near future.

TCP’s Liberty and Security Committee set out its Fourth Amendment concerns about cell tower tracking in a 2011 Statement on Location Tracking.

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