Warrant required to obtain phone tracking data, court rules
The three-judge panel of the 11th US Circuit Court of Appeals ruled that Americans do have the right to expect that their private movements will not be tracked, and the mere action of driving past a cell tower with their phone in hand is not enough cause for police to violate that privacy. The judges ruled Wednesday that police who do obtain the records without a judge's permission are violating a suspect's rights under the Fourth Amendment, which protects against unreasonable search and seizure.
“While committing a crime is certainly not within a legitimate expectation of privacy, if the cell site location data could place him near those scenes, if could place him near any other scene,” the judges wrote, as quoted by the Associated Press. “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.”
Police will still be able to obtain the records they need, although they will have to adhere to a higher burden of proof to earn a warrant that is currently required by a court order.
“The court's opinion is a resounding defense of the Fourth Amendment's continuing vitality in the digital age,” American Civil Liberties Union attorney Nathan Freed Wessler said in a statement after the decision. “The court soundly repudiates the government's argument that by merely using a cell phone, people somehow surrender their privacy rights.”
The three-judge panel ruled in the case of Quartavious Davis, a Miami resident who was sentenced to 162 years in prison for his involvement in a series of violent armed robberies.
Davis was convicted in part because cell phone tracking data placed him near the location of six of the robberies for which he was convicted, a point of contention for his lawyers who claimed police had no right to pull Davis' location records with a mere court order. A lower court judge ruled in the police's favor, deciding that they were allowed to do so under a “good faith” exception that was later deemed unconstitutional.
The ruling cited a 2012 US Supreme Court decision in which justices ruled that attaching a global positioning system device to a suspect's car constituted a Fourth Amendment search. The ruling was roundly criticized at the time for its failure to address how police obtain location data, particularly whether they need a warrant.
The decision essentially determined that police were wrong to plant a device on a suspect's vehicle, although ACLU attorneys argued that the Supreme Court should have gone further and noted that the average cell phone pings a nearby tower every eight seconds. For police to take advantage of that technology without any oversight is far more intrusive than planting a device on a car, according to the ACLU's Catherine Crump.
“After all, a cell phone is something you carry with you wherever you go,” she told NPR. “And we don't think the government should be accessing that type of information without a really good reason, which they can demonstrate by getting a warrant from a judge.”