The American Civil Liberties Union and a convicted robber’s defense attorney are asking the U.S. Supreme Court to consider requiring police to obtain a warrant before acquiring cellphone location data.
Application of the Fourth Amendment must evolve as new technologies become potential tracking devices, attorneys arguing for the mandate said in a Thursday appeal to the high court.
“At stake is the continuing vitality of the Fourth Amendment,” ACLU staff attorney Nathan Freed Wessler wrote in a blog post. “People should not have to choose between giving up their cellphones and giving up their Fourth Amendment rights.”
The legal effort last year won a unanimous ruling in favor of warrant protection from a three-judge panel of the U.S. Court of Appeals for the 11th Circuit. But a divided 11-judge en banc paneloverturned that ruling in May.
Privacy advocates feel they have the wind at their backs. The Supreme Court in 2012 said police must get warrants to use GPS tracking devices in U.S. v. Jones. And justices last year said in Riley v. California that police generally need warrants to search an arrested person’s cellphone.
“This case raises a hotly contested question that sits at the confluence of Jones and Riley: Whether the pervasive location data generated by use of a cellphone is protected from warrantless search by the Fourth Amendment,” the appeal says.
Guidance is needed, the appeal says, as many court systems don’t require warrants while some – like the federal 3rd Circuit – allow judges discretion to require warrants. Others take a tougher line, such as Florida’s Supreme Court, which in 2014 ruled people have a reasonable expectation of privacy when it comes to real-time location data.
The appeals court reversal also is seen as a potential boon for privacy advocates.
The en banc panel found the third-party doctrine – a controversial, decades-old legal theory exempting information a person voluntarily shares with a third party, such as a phone company, from warrant protection – allows for the acquisition of the cellphone data.
But, they wrote, even if that wasn’t true, it was reasonable for the government to take the records, as people at most have a diminished expectation of privacy regarding them.
Orin Kerr, a George Washington University law professor, wrote on the popular legal blog The Volokh Conspiracy that the en banc panel’s alternative finding of legality without the third-party doctrine is “way beyond this case, waters down Fourth Amendment protections, and is only likely to confuse other courts.”
One interesting implication of all of this is that the 11th Circuit’s alternative holding may make the case more cert-worthy than before,” he wrote.
“The reach of the majority opinion is breathtaking,” attorney David Oscar Markus, who argued before the en banc panel, told U.S. News in May. “Unfortunately, the majority is stuck in the early ‘80s when cellphones were the size of bricks and cost $3,000. The cases the judges cited from a] long-ago era aren’t helpful in today’s world.”
The appeal filed Thursday is brought on behalf of Quartavious Davis, convicted of committing a string of 2010 robberies. Authorities in Florida acquired 67 days of his cellphone call records and location data from MetroPCS.
Instead of a warrant based on probable cause, they used a court order acquired via a lower legal standard under the Stored Communications Act, saying the information was relevant to an investigation.
Judge David Sentelle, author of the three-judge panel’s earlier decision, wrote there is a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute.” Sentelle currently is among three judges weighing an appeal against the National Security Agency’s dragnet collection of U.S. call records, for which the government also leans on the third-party doctrine.
Wessler, who argued the location data part of Davis’ appeal before Sentelle, told U.S. News last year the case could have broad implications beyond the records stored by service providers.
The shadowy and often warrantless use by police of Stingray devices, which imitate cell towers to acquire vast amounts of information about people in a certain geographic area, might also be curbed, he said.
Unfortunately for Davis, even if the Supreme Court would accept the case and rule in his favor, he still may be required to serve his full sentence. The three-judge appeals panel said there was plenty of evidence to convict him without his location data.
ref:usnews
