4th Circuit Appeals Court Rolls Back Its Warrant Requirement For Cell Site Location Info

from the the-'summer-of-the-Fourth-Amendment'-is-so-last-year dept

The Fourth Circuit Court of Appeals was one of the few appeals courts to rule on the constitutionality of obtaining cell site location info without a warrant. And it was -- was -- the only appeals court to find warrantless access violated the Fourth Amendment. The decision was limited to the collection of historical cell site data for extended periods of time (the court appeared to believe anything beyond two weeks was questionable), mainly because there was a good chance the records would contain considerable detail about a person's movements in private places.

The government immediately requested an en banc hearing by the Appeals Court. The hearing was granted and the court has patched up its split with the other circuits by finding in favor of the government and the Third Party Doctrine. [PDF link]

We now hold that the Government’s acquisition of historical CSLI from Defendants’ cell phone provider did not violate the Fourth Amendment.

Supreme Court precedent mandates this conclusion. 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].” Smith v. Maryland, 442 U.S. 735, 743-44 (1979). This rule -- the third-party doctrine -- applies even when “the information is revealed” to a third party, as it assertedly was here, “on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” United States v. Miller, 425 U.S. 435, 443 (1976).

All of our sister circuits to have considered the question have held, as we do today, that the government does not violate the Fourth Amendment when it obtains historical CSLI from a service provider without a warrant. In addition to disregarding precedent, Defendants’ contrary arguments misunderstand the nature of CSLI, improperly attempt to redefine the third-party doctrine, and blur the critical distinction between content and non-content information.

The Supreme Court may in the future limit, or even eliminate, the third-party doctrine. Congress may act to require a warrant for CSLI. But without a change in controlling law, we cannot conclude that the Government violated the Fourth Amendment in this case.

The nod to 1979's Smith v. Maryland is back in place, setting this decision firmly in Third Party Doctrine territory. If it's "voluntarily conveyed" to a third party, the government doesn't need a warrant to access it. The key, though, is the "voluntary" part. While the majority finds the collection of cell site location data by service providers to be somehow a "voluntary" conveyance by customers, the three dissenting judges aren't as impressed by this argument.

The dissenting opinion (starting at p. 47) goes through the majority decision's citations and sees a whole lot more voluntary effort being made by citizens than what happens during the automatic acquisition of cell site info by phone companies.

The Supreme Court, then, has intentionally employed the “voluntary conveyance” concept in every relevant case to limit the reach of an otherwise sweeping per se rule that denies Fourth Amendment protection. It seems therefore crucial here to ask: what, precisely, did the Court mean when it chose those words, in the context of those cases?

Here is what those various defendants actually did to “voluntarily convey” information. One used his finger to dial, one by one, the numerical digits of a telephone number. Smith, 442 U.S. at 741 (highlighting that pen registers disclose “only the telephone numbers that have been dialed” (quoting United States v. N.Y. Tel. Co., 434 U.S. 159, 167 (1977))). Another submitted multiple checks and deposit slips—each presumably bearing a date, a dollar amount, a recipient name, and a personal signature. Miller, 425 U.S. at 442. The others actually spoke. White, 401 U.S. at 746–47 (conversations with a bugged government informant related to narcotics transactions); Hoffa, 385 U.S. at 296 (statements to an associate “disclosing endeavors to bribe [jury] members”); Lewis, 385 U.S. at 210 (conversations with an undercover law enforcement agent in the course of executing a narcotics sale).

In all of these cases—the only cases that can bind us here— “voluntary conveyance” meant at least two things. First, it meant that the defendant knew he was communicating particular information. We can easily assume Miller knew how much money he was depositing, that Smith knew the numbers he was dialing, and that Hoffa, Lewis, and White knew about the misconduct they verbally described to another.

Second, “voluntary conveyance” meant that the defendant had acted in some way to submit the particular information he knew. Crucially, there was an action—depositing, dialing, speaking— corresponding to each piece of submitted information. And where many data pieces were compiled into records—financial records in Miller, phone records in Smith—there was presumptively a discrete action behind each piece of data. The Court never suggested that the simple act of signing up for a bank account, or a phone line, was enough to willingly turn over thousands of pages of personal data.

The dissent goes on to point out that CSLI -- unlike other "voluntarily conveyed" third-party records -- isn't even made available to the customers that generate it. Customers have access to call records, bank statements, and other information collected under the Third Party Doctrine, but there's no easily-accessible way for citizens to view the location records they're conveniently generating for the government. This lack of access to information strongly suggests the collection of cell site location data by phone companies has nothing to do with voluntary conveyance.

The majority believes that if a "fix" is required, it should be left to legislators.

The legislative branch is far better positioned to respond to changes in technology than are the courts.

This is said with a straight face before using the Electronic Communications Privacy Act as an example of legislators' prowess: a law gives the government access to the contents of any electronic communications older than 180 days -- and which has yet to be updated in any serious form by legislators over the past 30 years, even as the tech landscape surrounding it has experienced monumental changes.

The majority maintains Congress "has not been asleep at the switch" since the ECPA's institution. And it's somewhat correct. Attempts have been made to rewrite the law in reaction to the explosion of electronic communications since the mid-80s, but forward motion has been stalled by government agencies unwilling to cede ground to shifting expectations of privacy. So, yes, Congress can fix it, but it needs to run a gauntlet of agencies it's in no hurry to anger and administrations that overwhelmingly oppose any minimal contractions of government reach or power. And if Congress hasn't made any significant progress towards trimming back the Third Party Doctrine's overgrowth since 1979's Smith v. Maryland decision, it's tough to believe that this is the decade where it will finally make its move.


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  • identicon
    Anonymous Coward, 1 Jun 2016 @ 9:39am

    If you have a cell carrier there's not much choice, but if you are using Android you can choose not to share your location with Google. Using the device only (GPS) location mode allows you to use mapping apps such as MAPS.ME or OsmAnd without sharing your location with a third party.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Jun 2016 @ 9:44am

    It is so easy to get a warrant with the ever compliant judges that take their word over actual evidence, yet they just want ultimate powers without any responsibility or possible accountability.

    Cannot wait to see just how much this is abused like Operation choke point

    https://en.wikipedia.org/wiki/Operation_Choke_Point

    Nothing like illegaly forcing people you do not like out of business for no other reason than you don't like them.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Jun 2016 @ 9:48am

      Re:

      The warrant requirement hurts their fishing expeditions. Warrants are easy to get, but unless the LEOs are willing to directly lie to the judge, they need some sort of evidence to get the warrant started. Relying on warrantless searches makes fishing trips much easier.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Jun 2016 @ 9:49am

    > If it's "voluntarily conveyed" to a third party, the government doesn't need a warrant to access it.

    How the hell is giving out my metadata a "voluntary" action? It's the definition of involuntary. I don't intend to give it, or I may not even be aware I'm giving it, but I'm giving it anyway because that's what seems to be necessary to make the service work.

    But to say this is "voluntary" on my part, is complete BS. Judges was supposed to be independent and stop government's powers from expanding, not play by their rules.

    reply to this | link to this | view in chronology ]

  • icon
    John Fenderson (profile), 1 Jun 2016 @ 9:55am

    Not many

    There are not many judicial precedents as illogical, ill-advised, and obviously unconstitutional as the third party doctrine as it is currently conceived.

    The right interpretation: data held about me by a third party can be voluntarily relinquished by that third party without violating the Constitution (although doing so could violate a contractual agreement). When the government forces the disclosure without a warrant, the Constitution is clearly and obviously being violated.

    The current interpretation: the government has access to anything they want without a warrant as long as they don't get it directly from you. It's corrosive nonsense.

    reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 1 Jun 2016 @ 10:00am

    Translation

    The majority believes that if a "fix" is required, it should be left to legislators.
    Translation: if you want this to get fixed, then money needs to change hands. You need to go to congress.

    reply to this | link to this | view in chronology ]

  • icon
    Dave Cortright (profile), 1 Jun 2016 @ 10:30am

    Dear my wireless provider,

    I hearby assert that despite having a cellular phone and data plan with you, I DO NOT voluntarily give you information regarding my device's location, or any other information regarding my device. I understand that you need certain information in order for the service to function. However once that information ceases to be functionally useful in direct support of providing my service, I insist that you destroy that information and do not record or log it in any way for any purpose. Also, to be clear, I do not consent you sharing even my real time data with any 3rd party—including and especially any agency of the government or law enforcement—without a warrant and without also notifying me.

    Well, it can't hurt to ask, right?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Jun 2016 @ 10:45am

    3rd Party Doctrine...

    Just another lie told by the corrupt to make people believe the 4th does not address this. This is further aggravated by the sheeple that think businesses do not have constitutional protections from government intrusion.

    Welp, everyone likes to wonder why revolution is so bloody... this is why. Show me a person whom thinks they can get a fair trial in America today, and I will show you a doomed fool! Once enough Americans figure out there is no civil recourse for unconstitutional government activity then the only answer is violence, because at this point the only solution the government has for its citizens is violence.

    You are no longer free, the police can murder you with little question. You have no liberty, you can be arrested the moment an officer decides it is necessary. Your rights are removed, the government can check your accounts, your privacy, or your very person and genitalia any time they choose in the name of national security. Have you day in court, the government will process you like a piece of meat and you will nary find a judge able to stand against the might of a willfully secretive and corrupt government.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Jun 2016 @ 10:59am

      Re: 3rd Party Doctrine...

      don't forget being tortured in secret because that's allowed now as long as they say it is for national security reasons.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 1 Jun 2016 @ 11:40am

        Re: Re: 3rd Party Doctrine...

        exactly! Good addition!

        I hope everyone that agreed with any form of torture gets their nails ripped out by the very folks they supported. Such sweet sweet irony!

        reply to this | link to this | view in chronology ]

  • icon
    silverscarcat (profile), 1 Jun 2016 @ 11:37am

    Well I'm certain then...

    That the judges have no issue with me going through their cars without a warrant or permission.

    Hey, it's out there in the open, in public, you can't expect privacy there.

    reply to this | link to this | view in chronology ]

  • icon
    JonC (profile), 1 Jun 2016 @ 11:59am

    We do need a law completely repudiating the third party doctrine. It's un-American and one of the great Supreme Court mistakes, up there with Citizens United.

    To get that accomplished, we will need to elect senators and representatives who are regular people from within our communities, not the candidates of the Democrats or the Republicans. It won't happen overnight, but I'm hoping that American dissatisfaction with our government will make that possible.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Jun 2016 @ 12:11pm

    Third party doctrine and coerced sharing of information

    I think about electricity "smart meters" and how they collect invasive and unnecessary (to me) information about my private business.

    The government says I "voluntarily" disclose real time information about my electricity usage (signal analysis is so good they can determine exactly which light bulb you turn on in real time)

    The electricity company told me I had no say in the matter. State law requires me to have a smart meter, and it is a crime to refuse, and people have been prosecuted for refusal. So under penalty of law, I "voluntarily" disclose personal information to a third party -- information whose only purpose is to be seized by the government and used for surveilance purposes. (And sold to marketers).

    "Voluntary" my ass.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Jun 2016 @ 1:14pm

      Re: Third party doctrine and coerced sharing of information

      Hey, you don't have to buy electricity, you don't have to have telephone, you don't have to have running water.

      Hell you don't even have to buy food, or live for that matter.

      They know they are wrong, but it's not going to stop them, for the same reason a liar will still lie about what they did even when you catch them red handed.

      They have MENTAL ISSUES, and we keep voting the fucking bastards in that give these mental fucking idiots power!

      reply to this | link to this | view in chronology ]

  • icon
    crade (profile), 1 Jun 2016 @ 12:12pm

    "The legislative branch is far better positioned to respond to changes in technology than are the courts."

    A meaningless statement.

    There is no way for the courts to pass decisions to congress when changes in technology make interpretation of the law difficult. It falls onto them to make the decision. Saying congress can change it if they want applies regardless of which decision they make and is nothing but a cop out.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 1 Jun 2016 @ 2:01pm

    Cheap Legal Justification to English translation

    Let's boil this idea down to what it really is.

    Courts arguing that the absurdly horrible 'Third Party Doctrine' applies to cell-phone location information are basically saying that carrying a cell-phone with you allows anyone with a badge to track your movements in real or near-real time, completely without a warrant, entirely at their discretion.

    Or to put it another way: Owning a cell phone is no different than 'voluntarily' carrying a tracking device accessible by any group or agency that wants access to the data, without any restrictions or limits on their access beyond what they can get the phone provider to hand over.

    Because clearly when people decide to carry a cell-phone the absolute first thought on their mind is how it can be used to track them by anyone with the desire to do so, and as such the act of continuing to carry a cell-phone after that point, without disabling the ability to track them is them giving the okay to that no-limits tracking. /s

    reply to this | link to this | view in chronology ]

  • icon
    Dave Cortright (profile), 1 Jun 2016 @ 2:35pm

    Are there any wireless providers who do not retain location logs?

    SO this ruling begs the question if there are any cell phone providers who do not retain historical records of their data. Yes they need to know the device location in real-time to route calls and data. But once that data is no longer useful for functional reasons, /dev/null

    Alternately, are there cell phone proxy providers who sign up for accounts on behalf of users, and then sanitize the data that is passed along to the cell provider? Seems like a great service, and one I would gladly subscribe to.

    reply to this | link to this | view in chronology ]

  • icon
    MarcAnthony (profile), 1 Jun 2016 @ 6:09pm

    What third party?

    If a provider that you have a business relationship with turns over information without a warrant—especially location data they are legally compelled to collect for 911 service—and does so with no resistance, then they are not third parties; they are de facto agents of the government.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Jun 2016 @ 6:34am

      Re: What third party?

      "especially location data they are legally compelled to collect for 911 service"

      location information is not sent until you physically dial 911.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Jun 2016 @ 5:20am

    meta data is "voluntarily provided"

    like holding ones breath is volunteering to being smothered with a pillow. What they have done here is delayed justice at an unenviable interest rate.

    reply to this | link to this | view in chronology ]


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