Access to Extended Cell-Site Records Requires Warrant – Fourth Circuit

US v. Graham.

The Fourth Circuit ruled that when the government inspects a cell phone user’s historical cell-site location information for an extended period pf time, it must get a warrant under the Fourth Amendment.

The Circuit Court split with the Fifth and Eleventh Circuits, which have said that no warrant is required, paving the way for Supreme Court review.

In Graham, the government obtained two court orders for the cell-site information associated with two phones, one used by Graham and one used by an accomplice in a string armed robberies. The first order involved 14 days of records around the specific times of each robbery. The second order covered 221 days of records based on the discovery of some additional robberies. At trial, the government used the data to show that the cell site information put Graham near both his accomplice and several of the robberies.

In a divided opinion, the Fourth Circuit held that requiring a cell phone provider to give the government extended records is a search under the Fourth Amendment.

The privacy interests affected by long-term GPS monitoring, as identified in [the concurrences in United States v. Jones, 132 S. Ct. 945, 565 U.S. ___ (2012) and its underlying case US v. Maynard, 451 F.Supp.2d 71 (D.D.C. 2006)] apply with equal or greater force to historical CSLI for an extended time period. See Commonwealth v. Augustine, 4 N.E.3d 846, 861 (Mass. 2014) (“CSLI implicates the same nature of privacy concerns as a GPS tracking device.”). “[C]itizens of this country largely expect the freedom to move about in relative anonymity without the government keeping an individualized, turn-by-turn itinerary of our comings and goings.” Renée McDonald Hutchins, Tied Up in Knotts? GPS Technology and the Fourth Amendment, 55 UCLA L. Rev. 409, 455 (2007).

Much like long-term GPS monitoring, long-term location information disclosed in cell phone records can reveal both a comprehensive view and specific details of the individual’s daily life. As the D.C. Circuit stated in Maynard, “A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups – and not just one such fact about a person, but all such facts.” 615 F.3d at 561-62; compare Jones, 132 S. Ct. at 955 (Sotomayor, J., concurring) (“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”), with State v. Earls, 70 A.3d 630, 642 (N.J. 2013) (“[CSLI] can reveal not just where people go — which doctors, religious services, and stores they visit — but also the people and groups they choose to affiliate with and when they actually do so.”).

Inspection of historical CSLI may provide even more private information about an individual than the locational monitoring challenged in Maynard/Jones. The surveillance at issue in that case was limited to movements of an automobile on public roads. See Jones, 132 S. Ct. at 948. Quite unlike an automobile, a cell phone is a small hand-held device that is often hidden on the person of its user and seldom leaves her presence. As previously discussed, cell phone users regularly carry these devices into their homes and other private spaces to which automobiles have limited access at best. See Augustine, 4 N.E.3d at 861. Thus, unlike GPS monitoring of a vehicle, examination of historical CSLI can permit the government to track a person’s movements between public and private spaces, impacting at once her interests in both the privacy of her movements and the privacy of her home.

Thus, the Fourth Circuit concludes that 221 or 14 days of cell site records is a search. But what constitutes an “extended” period of time under the decision is less clear. The Court refused to “draw a bright line” on how long data can be collected before it becomes a Fourth Amendment search.

The decision’s split with the Fifth and Eleventh Circuit grows out of their application of the third-party doctrine. The other Circuits held the data to be unprotected because it’s controlled by a third party. The Fourth Circuit, however, declined to apply the doctrine “because a cell phone user does not “convey” CSLI to her service provider at all – voluntarily or otherwise – and therefore does not assume any risk of disclosure to law enforcement.” That is, the service provider automatically generates cell site data. Use of the network generates the data without further involvement from the user.

Notably, the CSLI at issue in this appeal details location information not only for those transmissions in which Appellants actively participated – i.e., messages or calls they made or answered – but also for messages and calls their phones received but they did not answer. When a cell phone receives a call or message and the user does not respond, the phone’s location is identified without any affirmative act by its user at all – much less, “voluntary conveyance.”…

…We have no reason to suppose that users generally know what cell sites transmit their communications or where those cell sites are located. A cell phone user cannot be said to “voluntarily convey” to her service provider information that she never held but was instead generated by the service provider itself without the user’s involvement.

Because warrants were not obtained, the the court concludes that the Fourth Amendment was violated.

However, despite this conclusion, the court further held that the records needn’t be suppressed because the government acted in good faith under the Stored Communications Act, triggering the good faith exception to the exclusionary rule. The Fourth Circuit parted from the Third Circuirt by concluding that the Act gives the government the option to get intermediate orders instead of warrants for cell tower data from providers. Thus, Graham will not get a reversal, but future defendants may have better luck, as the court wrote in a footnote that their decision means the government “may no longer rely” on the Act to justify a failure to procure a warrant.

Here is a nice little nugget from the dissent, which reasoned that the third-party doctrine should apply:

Time may show that my colleagues have struck the proper balance between technology and privacy. But if the majority is proven right, it will only be because the Supreme Court revises its decades-old understanding of how the Fourth Amendment treats information voluntarily disclosed to third parties. Today the majority endeavors to beat the Supreme Court to the punch. Respectfully, I dissent.