11th Circuit Rules Warrrant Required for Cell Site Locator Data

By Jeralyn, Section Civil Liberties
Posted on Wed Jun 11, 2014 at 07:59:30 PM EST
Tags: cell site locator data (all tags)

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Quartavious Davis was convicted of various robberies during which he possessed a gun. He was sentenced to 162 years. His primary argument on appeal was the the Government obtained his cell phone's location information from his wireless provider by court order under the Stored Communications Act rather than by search warrant. Unlike a search warrant, the SCA does not require a showing of probable cause. The Government used the location data Davis at trial to show that as to six of the seven robberies, Davis and his co-defendants placed and received cell phone calls around the time of the robberies near the locations of the stores that were robbed. The 11th Circuit ruled Davis had a valid privacy interest in his location under the Fourth Amendment, and obtaining the data via an order under the SCA (section 2703(d)) was unconstitutional. The opinion is here.

The AP reports:

In the first ruling of its kind nationally, a three-judge panel of the 11th U.S. Circuit Court of Appeals determined people have an expectation of privacy in their movements and that the cell tower data was part of that. As such, obtaining the records without a search warrant is a violation of the Fourth Amendment's ban on unreasonable searches and seizures, the judges ruled.

However, Davis gets no relief from the Court because of the violation. The Court determined the "good faith" exception to the exclusionary rule applies under United States v. Leon. [More...]

From the opinion:

[I]t cannot be denied that the Fourth Amendment protection against unreasonable searches and seizures shields the people from the warrantless interception of electronic data or sound waves carrying communications. The next step of analysis, then, is to inquire whether that protection covers not only content, but also the transmission itself when it reveals information about the personal source of the transmission, specifically his location.

...One’s cell phone, unlike an automobile, can accompany its owner anywhere. 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.

...In short, we hold that cell site location information is within the subscriber’s reasonable expectation of privacy. The obtaining of that data without a warrant is a Fourth Amendment violation.

On the application of Leon, the Court stated:

The officers here acted in good faith reliance on an order rather than a warrant, but, as in Leon, there was a “judicial mandate” to the officers to conduct such search and seizure as was contemplated by the court order. See id. at 920 n.21. As in Leon, the officers “had a sworn duty to carry out” the provisions of the order. Id. Therefore, even if there was a defect in the issuance of the mandate, there is no foundation for the application of the exclusionary rule.

The SCA needs to be revised. It was written in 1986 at a time when there were no smart phones and not everyone used a cell phone or mobile device.

Quartavious Davis will get some relief though. The court remanded the case for resentencing on the gun counts, having nothing to do with the cell phone tracking issue.

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11th Circuit Rules Warrrant Required for Cell Site Locator Data | 2 comments (2 topical)

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privacy issue related=computer lens (5.00 / 2) (#1)
by Lfrieling on Thu Jun 12, 2014 at 10:25:46 AM EST

On the related issue of our vanishing reasonable expectation of privacy, remember your notebook's built in lens. I don't know if this is true, or a myth this week. I suspect if it is not true today, it will be tomorrow. There is a belief by some that your computer's video system can be manipulated to have the camera "on" when you don't know it. So, theoretically, someone can watch you through your computer without you realizing that the camera is "on."

I speculate that this might happen through Google, Facebook, and other "legit" sites more than something employed by hackers and crackers. Regardless, I put a small piece of masking tape over the lens. Call me paranoid (probably true). Call me realistic (probably truer. Call me for breakfast. Please <G> :)__~ Lenny

: Another illustration: (5.00 / 1) (#2)
by oculus on Thu Jun 12, 2014 at 10:37:59 AM EST

Apparently having a charge receipt sent to my phone previously by another business triggered this.