In one of the stronger defenses of Fourth Amendment rights in the digital age, a federal appellate court panel in August ruled 2 to 1 that law enforcement officials can’t request cell phone location records without a warrant.
The government is now asking the full Fourth Circuit Court of Appeals to overrule the panel’s earlier decision, arguing that by choosing to connect to a mobile network, users lose any reasonable expectation that their location is private.
Quoting the dissenting judge, the government wrote that the panel’s decision “flies in the face of the Supreme Court’s well-established third-party doctrine.”
The third-party doctrine is a legal theory that asserts that users voluntarily give up information like location data by subscribing to public services like communications providers, and thus have “no reasonable expectation of privacy” when it comes to that information.
The Fourth Circuit panel had ruled that the third-party doctrine was never intended to allow the government to track people’s entire digital lives over the course of lengthy periods of time, and sided with lawyers for Aaron Graham, a Baltimore man convicted of armed robbery based on details found in seven months of his call records obtained from Sprint without a warrant.
“People cannot be deemed to have volunteered to forfeit expectations of privacy by simply seeking active participation in society through use of their cell phones,” the panel wrote in August.
But the government argued that the Fourth Circuit decision flouted two previous 1970s Supreme Court decisions that had reaffirmed the third-party doctrine.
In United States v. Miller, the court ruled that the contents of original checks and deposit slips were “not confidential communications” and were freely given to a third party — the bank.
In Smith v. Maryland, the court ruled that installation of a pen register, a device that records the numbers of outgoing phone calls, does not constitute a search in violation of the Fourth Amendment because the numbers dialed were shared with the phone company.
What was different about the cell phone case, the Fourth Circuit panel ruled, was that people do not generally know which cell phone tower their phone is connecting to, and do not intentionally offer details about their whereabouts at all times to the cell phone company.
And while subscribers are aware that the provider needs to know which tower to use in order to connect the call, combining seven months of data paints a detailed picture of someone’s everyday life.
Nate Wessler, a staff attorney with the American Civil Liberties Union, said the government “is struggling mightily against the tide.” He explained: “Courts are moving towards recognizing that in the digital age, we need to protect sensitive information. … As of now, in five states, they have to get warrants. … They’re trying to go back to when it was easier. But it will be hard to prevent it from happening.”