Police don’t have to get a search warrant to obtain records about cellphone locations in criminal investigations, a federal appeals court ruled Tuesday in a case closely watched by privacy rights advocates.
The 12-3 decision by the full 4th U.S. Circuit Court of Appeals reversed a three-judge panel’s ruling last year that the constitutional protection against unreasonable search and seizure requires police to get a warrant for information obtained from cell towers.
The Richmond-based appeals court now agrees with the only other three federal appeals courts that have taken up the issue, making it less likely that the U.S. Supreme Court will consider the matter. Meghan Skelton, attorney for the two Maryland men who challenged the use of cell tower data, said she will ask for Supreme Court review anyway because there is disagreement among the circuits on some of the underlying issues.
“The 4th Circuit’s decision is not the last word on this issue,” said Nathan Freed Wessler, an attorney with the ACLU Speech, Privacy and Technology Project. “Other appellate courts will surely address these questions soon, and the Supreme Court may well need to weigh in.”
U.S. Attorney Rod J. Rosenstein said the appeals court reached the right conclusion based on Supreme Court precedent and the decisions of other circuits.
The ACLU was one of several organizations that filed friend-of-the court briefs in the case involving two men convicted of a series of armed robberies in the Baltimore area. Police used cellphone tower records tracking the suspects’ movements to tie them to the crimes.
Judge Diana Gribbon Motz wrote in Tuesday’s majority opinion that the Supreme Court has long held that the Fourth Amendment does not protect information that a person voluntarily turns over to a third party — in this case, the defendants’ cellphone service providers.
“The government did not surreptitiously listen to, record, or in any other way engage in direct surveillance of defendants to obtain this information,” she wrote.
Rosenstein said in a telephone interview that it’s important to note that police still have to get a court order, as they did in this case, to obtain cell tower data. Authorities only have to show that the information is relevant to a criminal investigation to get a court order while a search warrant requires the higher standard of probable cause. Still, he said, the court order serves as a check against abuses.
Appeals court Judge James A. Wynn wrote that the so-called “third-party doctrine” exempts from Fourth Amendment protection information that is voluntarily conveyed by its owner. He said it is unlikely that a cellphone user believes he or she is voluntarily giving up the location information that is captured by the service provider, so the doctrine shouldn’t apply.
Skelton said Wynne’s analysis is correct.
“Simply carrying a cellphone is not an invitation to the government to track our every move,” she said. “That’s why we think the Fourth Amendment protects us.”
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