No warrant needed to get cellphone location data

The Government’s acquisition of historical cell-site location information (CSLI) from two criminal defendants’ cell phone provider without a warrant did not violate the Fourth Amendment, because it did not constitute a Fourth Amendment search, ruled the U.S. Court of Appeals for the 4th Circuit in a split decision (12-3) published May 31, 2016.  CSLI are the records of a phone company that identify which cell tower – usually the one closest to the cell phone – transmitted a signal when the defendants used their cell phones to make and receive calls and texts. To obtain the CSLI from Sprint/Nextel, the Defendants’ cell phone provider, the Government had to apply to a federal court for an order directing the company to disclose the records pursuant to the Stored Communications Act. 18 U.S.C. § 2703(c), (d).

Why is this case significant?

The government used the historical CSLI obtained from Sprint/Nextel at the defendants’ trial to place them in the vicinity of the armed robberies when the robberies had occurred. There were 221 days’ worth of information. The defendants were convicted.

When is there fourth amendment search?

The Fourth Amendment ensures that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV.  Broadly, “a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” The court said that an individual enjoys no Fourth Amendment protection “in information he voluntarily turns over to [a] third part[y].” This rule -- the third-party doctrine—applies even when “the information is revealed” to a third party, as it was here, “on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.”

According to the Court, the government did not surreptitiously view, listen to, record, or in any other way engage in direct surveillance of Defendants to obtain this information. Rather, CSLI is created and maintained in the normal course of the telephone company’s business. The Court said that the question was whether the government invades an individual’s reasonable expectation of privacy when it obtains, from a third party, the third party’s records, which permit the government to deduce location information. Under the third-party doctrine, an individual can claim “no legitimate expectation of privacy” in information that he has voluntarily turned over to a third party, because by “revealing his affairs to another,” an individual “takes the risk . . . that the information will be conveyed by that person to the Government.”  “The Fourth Amendment does not protect information voluntarily disclosed to a third party because even a subjective expectation of privacy in such information is “not one that society is prepared to recognize as ‘reasonable.’” The government therefore does not engage in a Fourth Amendment “search” when it acquires such information from a third party.

The Court held that Defendants did not have a reasonable expectation of privacy in the CSLI records because Defendants “exposed” the information to the phone company’s “equipment in the ordinary course of business.” Each time Defendants made or received a call, or sent or received a text message, Sprint/Nextel generated a record of the cell towers used. The CSLI that Sprint/Nextel recorded was necessary to route Defendants’ cell phone calls and texts. Having “exposed” the CSLI to Sprint/Nextel, Defendants “assumed the risk” that the phone company would disclose their information to the government. Therefore, the Government’s acquisition of historical CSLI pursuant to 8 U.S.C. § 2703(d) orders, rather than warrants, did not violate the Fourth Amendment.

Judge James Wynn, in his dissent which was joined by two judges, said that a cell phone customer neither possesses knowledge of his CSLI nor acts to disclose it. Therefore, he “has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way” and is not subject to the third-party doctrine. U.S. v. Graham, No. 12-4659, 12-4825 (4th Cir. 05/31/16)

An array of freedom-loving organizations supported the criminal defendants’ position by filing amici curiae briefs, including, the National Association of Criminal Defense Lawyers and the American Civil Liberties Union.

(Atty. Tipon has a Master of Laws degree from Yale Law School where he specialized in Constitutional Law. He has also a Bachelor of Laws degree from the University of the Philippines. He placed third in the Philippine Bar Examination in 1956. His current practice focuses on immigration law and criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. He has also a radio show in Honolulu, Hawaii with his son Noel, senior partner of the Bilecki & Tipon law firm, where they discuss legal and political issues. Office: American Savings Bank Tower, 1001 Bishop Street, Suite 2305, Honolulu, Hawaii, U.S.A. 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.MilitaryandCriminalLaw.com. He was born in Laoag City, Philippines. He served as a U.S. Immigration Officer. He is co-author with retired Manila RTC Judge Artemio S. Tipon of the best-seller “Winning by Knowing Your Election Laws” and co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)