Courts across the country are grappling with a key question for the information age: When law enforcement asks a company for cellphone records to track location data in an investigation, is that a search under the Fourth Amendment?
By a 12-3 vote, appellate court judges in Richmond, Virginia, on Monday ruled that it is not — and therefore does not require a warrant.
The 4th Circuit Court of Appeals upheld what is known as the third-party doctrine: a legal theory suggesting that consumers who knowingly and willingly surrender information to third parties therefore have “no reasonable expectation of privacy” in that information — regardless of how much information there is, or how revealing it is.
Research clearly shows that cell-site location data collected over time can reveal a tremendous amount of personal information — like where you live, where you work, when you travel, who you meet with, and who you sleep with. And it’s impossible to make a call without giving up your location to the cellphone company.
“Supreme Court precedent mandates this conclusion,” Judge Diana Motz wrote in the majority opinion. “For the Court has long held that an individual enjoys no Fourth Amendment protection ‘in information he voluntarily turns over to [a] third part[y].’” The quote was from the 1979 Supreme Court case Smith v. Maryland.
The 5th, 6th, and 11th circuits have reached the same conclusion.
However, there’s been a lot of disagreement within the lower courts and among privacy advocates that the third-party doctrine is consistent with the way people live their lives in the digital age — primarily on their cellphones.
A three-judge panel of the 4th Circuit in fact first ruled last August that getting cell-site records in bulk did constitute a search, triggering a warrant requirement. In the case, United States v. Graham, the government obtained 221 days’ worth of records belonging to a robbery suspect in Baltimore.
The panel’s opinion relied heavily on a separate legal theory, called mosaic theory, to come to that conclusion: the argument that even if one instance of evidence gathering doesn’t count as a search, asking for a large number of data points can eventually amount to one.
For a while, it looked like there might be a split in the lower courts that would require the Supreme Court to reconsider the third-party doctrine.
But now that the 4th Circuit has ruled, that seems less likely.
Privacy advocates were disappointed:
So depressing: 4th Cir Ct of Appeals en banc holds government doesn't need warrant to access cell site location info https://t.co/SgRqyhvRzV— Jen Lynch (@lynch_jen) May 31, 2016
I have to believe that we have a good chance of reigning in the 3rd Party Doctrine's wild over-application. But today I'm not optimistic.— Nate Cardozo (@ncardozo) May 31, 2016
The three judges in the minority wrote a strongly worded dissent.
“Only time will tell whether our society will prove capable of preserving age-old privacy protections in this increasingly networked era. But one thing is sure: this Court’s decision today will do nothing to advance that effort. I dissent,” Judge James Wynn wrote, joined by Henry Floyd and Stephanie Thacker.
“This is a sign that lower courts are still following the third-party doctrine,” Orin Kerr, a law professor at George Washington University Law School, wrote in an email to The Intercept. “I think the 4th Circuit correctly applied Supreme Court law. But that doesn’t tell us what the Supreme Court might do.”
While this case “removes the circuit split,” he wrote, a Supreme Court consideration of third-party doctrine issues “will probably happen eventually.”
Nate Wessler, a staff attorney with the American Civil Liberties Union’s Speech, Privacy, and Technology Project, said he remains hopeful.
“In virtually every one of these cases, there have been very strong dissents. That in itself is a very strong message to the Supreme Court,” he said.
He also pointed out that many judges in the majority on these cases have signaled that it may be time for the Supreme Court to revisit the issue. And in several of the appellate cases, judges have called on Congress to do something about it.
Congress is poised to consider the privacy implications of searching stored emails, Wessler said, pointing to popular reform in Congress of the Electronic Communications Privacy Act, which passed the House unanimously, requiring law enforcement to get a warrant to search old emails.
“Hopefully they can muster the same for location information,” he said.