The Eleventh Circuit Court of Appeals further splintered the jurisprudence surrounding government access to historical cell site location records, holding that such requests always constitute a Fourth Amendment search requiring a warrant.
The case arose in the context of the government’s prosecution of the defendant for a series of Hobbs Act robberies. The government used the evidence to demonstrate that the defendant was near the scene of the crimes at the time they occurred. Rather than obtaining a warrant for the information, see SCA section 2703(c)(A), the government relied on a 2703(d) order, with the lower “reasonable grounds to believe” standard based on “specific and articulable facts” under section 2703(c)(B). The defendant argued that such practice violated his right of privacy protected by the Fourth Amendment.
In 2010, the Third Circuit suggested, albeit in dicta, that a warrant may be required for historical cell site information. Last year, the Fifth Circuit disagreed, holding that courts lack discretion to require that the government meet the probable cause standard when it requests non-content information under the SCA and that compelling providers to produce records of user cell site data is not a Fourth Amendment search. You can read more about these decisions in our previous blog post here. While the Eleventh Circuit took note of these previous decisions, it dodged addressing the cases directly stating, “We will not review at this point the reasoning of either of our sibling circuits, given that the context of the cases is different, and one of those circuits opined before issuance of Jones, the most instructive Supreme Court decision in the field.”
Instead, the court carefully reviewed the Supreme Court’s Fourth Amendment jurisprudence over the past 100 years, examining the historical distinction between the trespass and privacy theories. The court concluded that the privacy theory applied to cell site location information, concluding that the Supreme Court’s 2012 GPS location case, U.S. v Jones, was the guiding case. “While Jones is distinguishable from the case before us, it concerned location information obtained by a technology sufficiently similar to that furnished in the cell site location information to make it clearly relevant to our analysis.” See here for our discussion of Jones.
Examining the separate opinions of the Justices in Jones, the court concluded that the privacy theory of Fourth Amendment analysis was adopted by a clear majority of the Supreme Court as it relates to obtaining electronic location information. “In light of the confluence of the three opinions in the Supreme Court’s decision in Jones, we accept the proposition that the privacy theory is not only alive and well, but available to govern electronic information of search and seizure in the absence of trespass.”
Having determined that the analysis should proceed under the privacy theory, the court easily found that, like the intrusion in Jones, historical cell site information is protected by the Fourth Amendment. In fact, contrary to the government’s assertion that because GPS can be more precise than cell site information it should be more protected, the court concluded that the contrary was true. Whereas the government in Jones had used the GPS device to track someone’s movements only on the public streets, the cell phone, the court noted, “can accompany its owner everywhere.”
Thus, the court went further than the mosaic analysis in Jones, stating that:
“When one’s whereabouts are not public, then one may have a reasonable expectation of privacy in those whereabouts. Therefore, while it may be the case that even in light of the Jones opinion, GPS location information on an automobile would be protected only in the case of aggregated data, even one point of cell site location data can be within a reasonable expectation of privacy. In that sense, cell site data is more like communications data than it is like GPS information. That is, it is private in nature rather than being public data that warrants privacy protection only when its collection creates a sufficient mosaic to expose that which would otherwise be private.”
Finally, the court rather summarily rejected the government’s third-party argument – accepted by the Fifth Circuit – that cell phone users lack a protected privacy interest in their location because they voluntarily disclose that information to their providers. Instead, the court agreed with the Third Circuit’s view that ‘a cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way.’ That circuit further noted that ‘it is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information.’
On this basis, the court concluded “[i]n short, we hold that cell site location information is within the subscriber’s reasonable expectation of privacy. The obtaining of that data without a warrant is a Fourth Amendment violation.”
Hopefully, the Supreme Court will take up the issue soon, as there now is a clear circuit split. Much like after the Sixth Circuit’s opinion in Warshak (dealing with the disclosure of email content under the SCA – see here, here and here for some of our analysis on this issue), in the meantime, providers who are disclosing location data to the government on less than a search warrant should reconsider their position (especially in the 11th Circuit).
Featured Image by Frits Ahlefeldt-Laurvig Photo from Flickr
