Search of Cellphone Location Data Requires a Warrant, 4th Circuit Says

in part on cell site location information (CSLI) obtained from Sprint. The decision in U.S. v. Aaron Graham was written by Senior Judge Andre Davis for himself and for Judge Stephanie Thacker. But Thacker also issued a concurrence and Judge Diana Gribbon Motz partly dissented. “We hold that the government conducts a search under the Fourth Amendment when it obtains and inspects a cell phone user’s historical CSLI for an extended period of time,” the court ruled Wednesday. “Examination of a person’s historical CSLI can enable the government to trace the movements of the cell phone and its user across public and private spaces and thereby discover the private activities and personal habits of the user. Cell phone users have an objectively reasonable expectation of privacy in this information.” The 4th Circuit said cellphone location information raises bigger privacy issues than data from tracking devices in an automobile. “Quite unlike an automobile, a cell phone is a small hand-held device that is often hidden on the person of its user and seldom leaves her presence,” the court said. “Cell phone users regularly carry these devices into their homes and other private spaces to which automobiles have limited access at best.” Motz disagreed with the majority that obtaining information from a voluntarily surrendered cellphone requires a warrant. The decision did the two defendants in the case little good, saying that since the government “relied in good faith on court orders” issued in accordance with Title II of the Electronic Communications Privacy Act, or the Stored Communications Act, “the court’s admission of the challenged evidence must be sustained.” Thacker wrote separately of her concern "about the erosion of privacy in this era of rapid technological development." The "tension between the right to privacy and emerging technology, particularly as it relates to cell phones, impacts all Americans," she wrote. "As the march of technological progress continues to advance upon our zone of privacy, each step forward should be met with considered judgment that errs on the side of protecting privacy and accounts for the practical realities of modern life. At bottom, this decision continues a time-honored American tradition -- obtaining a warrant is the rule, not the exception." The Center for Democracy & Technology said the decision is significant. “The government compelled the disclosure of 221 days of cell phone location information, which included 26,659 location data points for one defendant and 28,410 for another,” a CDT news release said. “Unless reversed by the full 4th Circuit, the decision sets up a clear split in the circuits about the extent of protection of cell phone location information. As a result, this issue will likely require resolution by the Supreme Court.” Rep. Suzan DelBene, D-Wash., said the case is “an important reminder that government should not have free rein to infringe on the constitutional right to due process” and called for overhaul of the Electronic Communications Privacy Act (ECPA). “More than 20 years after email became ubiquitous, our laws remain woefully outdated,” she said in a statement. “I urge leadership to take up ECPA reform without delay.”