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June 29th, 2016
Cell phones have become a part of our everyday lives, an accessory almost as common as the clothes we wear. There are even apps which allow us to determine where our friends are by tracking their cell phone location or assist in finding lost cell phones. That said, my guess is most people would assume that law enforcement agencies cannot access our cell phone data in furtherance of a criminal investigation absent a search warrant issued upon a finding of probable cause. Such an assumption would be wrong as the Fourth Circuit Court of Appeals in U.S. v. Graham, No. 12-4659 (May 31, 2016), the Sixth Circuit Court of Appeals in U.S. v. Carpenter, 819 F.3d 880 (April 13, 2016) and the Eleventh Circuit Court of Appeals in US v. Davis, No. 12-12928 (May 5, 2016), recently issued decisions over a period of seven weeks, each finding that law enforcement agencies can obtain information without a search warrant. Specifically, law enforcement may obtain cell phone tower location records indicating where an individual’s cell phone was at a given time from wireless carriers without first obtaining a search warrant issued upon a finding of probable cause. While cell phone tower records do not provide information regarding the content of the communications themselves or the precise location of the cell phone, they can provide such information as telephone numbers, date, times of texts and the time and length of calls in addition to the location of the cell tower that connected the calls or transmitted the texts. By ascertaining the location of the cell tower transmitting a call or text, law enforcement can narrow down the vicinity of the location of the cell phone at any given time.
Each of the cases began when law enforcement obtained information from cellular phone providers under the Stored Communications Act, 18 U.S.C. § 2701, et seq., which requires telephone service providers to produce records pertaining to a subscriber or customer if a court of competent jurisdiction finds there is specific and articulable facts showing there is reasonable grounds to believe the records are relevant and material to an on-going criminal investigation. The information at issue included the locations of cell phone towers which connected calls and/or transmitted texts to/from the defendants’ cell phones. This information enabled law enforcement to place the defendants in the vicinity of crimes at the time the crimes occurred. In each of the cases, the defendants challenged the admission of the evidence as a violation of their Fourth Amendment Right against unreasonable searches and seizures. That is, the defendants argued that law enforcement was required to obtain a search warrant issued upon probable cause to obtain the cell tower information from the wireless providers. The Fourth, Sixth and Eleventh Courts of Appeals disagreed, each finding that there is no reasonable expectation of privacy with respect to cell tower records maintained by wireless providers in the normal course of business.
A critical fact relied upon by the courts in finding that a search warrant was not necessary was that the information at issue was information gathered and maintained by a third-party, the wireless provider, in the normal course of the wireless provider’s business. For example, wireless carriers necessarily track their customers’ phones across different cell towers to connect and maintain their customers’ calls. The carriers also keep records of this data for such purposes as finding weak spots in their network and determining whether customers exceed their voice/data plan allotment, among other purposes. Thus, the cell tower data was compared to a mailing address, phone number or IP address which facilitates personal communications, rather than being part of the content of the communications themselves. The courts drew a clear distinction between the need to have a search warrant to obtain the content of the communications themselves from the need to have a search warrant to obtain the non-content information that enables wireless providers to transmit communications. A search warrant is needed to obtain the content of the communications themselves. However, a search warrant is not needed to obtain the non-content information, such as cell tower locations, which wireless carriers maintain in the normal course of business for independent business purposes.
Part of the reasoning invoked by the Eleventh Circuit is that the public at large knows that cell towers are used to connect calls, transfer data and cannot track a cell phone’s precise location, only the general vicinity of the cell phone. This knowledges also implies a voluntary relinquishment of information to the wireless carrier in order to facilitate the sending and receipt of calls, texts and data. As the cell phone tower records belong to the wireless carrier, a third party, and not the individual cell phone user, the cell phone user does not have a reasonable expectation of privacy in those records. Without a reasonable expectation of privacy in information voluntarily provided to a third party, a search warrant is not needed and law enforcement’s acquisition of information kept in the normal course of business by a third party wireless carrier from the wireless carrier itself is not a search subject to Fourth Amendment protections. What these decisions mean in our everyday lives is that law enforcement officials do not need a search warrant to access cell tower records when investigating criminal matters and our use of the cell phones which have become such a part of our daily lives may provide law enforcement information regarding our locations that we did not know we were providing.
