The Volokh Conspiracy
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A divided Fourth Circuit has ruled, in United States v. Graham, that "the government conducts a search under the Fourth Amendment when it obtains and inspects a cell phone user's historical [cell-site location information] for an extended period of time" and that obtaining such records requires a warrant.
The new case creates multiple circuit splits, which may lead to Supreme Court review. Specifically, the decision creates a clear circuit split with the Fifth and Eleventh Circuits on whether acquiring cell-site records is a search. It also creates an additional clear circuit split with the Eleventh Circuit on whether, if cell-site records are protected, a warrant is required. Finally, it also appears to deepen an existing split between the Fifth and Third Circuits on whether the Stored Communications Act allows the government to choose whether to obtain an intermediate court order or a warrant for cell-site records.
This post will cover the reasoning of the new case in detail. In a follow-up post, which I hope to publish later tonight, I'll address whether the Supreme Court might review this case and how the Justices might rule if they do.
I. The Facts
First, the facts. Graham committed a string of armed robberies in Baltimore. He was assisted by his co-conspirator, Jordan, who apparently drove the getaway car. Jordan used his wife's cell phone; Graham used a cell phone registered with an alias. The government obtained two court orders for historical cell-site records associated with the two phones to try to determine the location of Graham and Jordan around the time of the robberies. The first court order involved fourteen days worth of records that covered four discrete time windows in which four robberies had occurred. The second order was much broader, covering 221 days of records, inclusive of the fourteen days. The second order was based on the discovery of additional robberies. The cell provider turned over the records covering 221 days.
At trial, the government used the records to show that Graham was "within a few miles" of several of the robberies and that Jordan and Graham were "near" each other at times surrounding some of the robberies. Although the records weren't precise, there were a lot of them. The records contained 29,659 location data points for Graham and 28,410 for Jordan, averaging over 100 location records per person per day.
II. The Reasoning
In the new opinion, the Fourth Circuit (Judge Davis joined by Judge Thacker, with Judge Motz dissenting) holds that ordering a cell provider to hand over "extended" records is a Fourth Amendment search because "society recognizes an individual's privacy interest in her movements over an extended time period." The Fourth Circuit relies primarily on the "mosaic theory" arguments of the D.C. Circuit's opinion in United States v. Maynard and the concurring opinions when that case reached the Supreme Court under the name of United States v. Jones:
The privacy interests affected by long-term GPS monitoring, as identified in Maynard and the Jones concurrences, apply with equal or greater force to historical CSLI for an extended time period. See Commonwealth v. Augustine, 4 N.E.3d 846, 861 (Mass. 2014) ("CSLI implicates the same nature of privacy concerns as a GPS tracking device."). "[C]itizens of this country largely expect the freedom to move about in relative anonymity without the government keeping an individualized, turn-by-turn itinerary of our comings and goings." Renée McDonald Hutchins, Tied Up in Knotts? GPS Technology and the Fourth Amendment, 55 UCLA L. Rev. 409, 455 (2007).
Much like long-term GPS monitoring, long-term location information disclosed in cell phone records can reveal both a comprehensive view and specific details of the individual's daily life. As the D.C. Circuit stated in Maynard, "A person who knows all of another's travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups—and not just one such fact about a person, but all such facts." 615 F.3d at 561-62; compare Jones, 132 S. Ct. at 955 (Sotomayor, J., concurring) ("GPS monitoring generates a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations."), with State v. Earls, 70 A.3d 630, 642 (N.J. 2013) ("[CSLI] can reveal not just where people go—which doctors, religious services, and stores they visit—but also the people and groups they choose to affiliate with and when they actually do so.").
Inspection of historical CSLI may provide even more private information about an individual than the locational monitoring challenged in Maynard/Jones. The surveillance at issue in that case was limited to movements of an automobile on public roads. See Jones, 132 S. Ct. at 948. 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. As previously discussed, cell phone users regularly carry these devices into their homes and other private spaces to which automobiles have limited access at best. See Augustine, 4 N.E.3d at 861. Thus, unlike GPS monitoring of a vehicle, examination of historical CSLI can permit the government to track a person's movements between public and private spaces, impacting at once her interests in both the privacy of her movements and the privacy of her home.
. . . . Taken together, Karo, Kyllo, and the views expressed in Riley and the Jones concurrences support our conclusion that the government invades a reasonable expectation of privacy when it relies upon technology not in general use to discover the movements of an individual over an extended period of time. Cell phone tracking through inspection of CSLI is one such technology.
How long is an "extended" period of time? The Fourth Circuit says that "an extended time period" includes 14 or 221 days The court punts, however, on where the line is: "This case does not require us to draw a bright line as to how long the time period for historical CSLI can be before its inspection rises to the level of a Fourth Amendment search, and we decline to do so." (Wherever the line is, could the government get multiple orders under the line to cumulatively reach above the line, or would that become a search? The opinion doesn't say.)
What if the phone is turned off during that time, or a person made only a few calls, so the records obtained in that particular case aren't very revealing or actually reveal nothing at all? After all, the information in this case was really imprecise. It showed Graham only "within a few miles" of the robberies. According to the Fourth Circuit, that doesn't matter. A warrant is still required even if no information is obtained at all. That's because the "search" occurs when the government "seeks to examine" the extended records, the court rules, not when it actually sees what the records are. So the same search occurs regardless of whether there are precise and detailed records, imprecise records, or even no records.
What about the third-party doctrine, the basis for the 5th Circuit and 11th Circuit holdings that historical cell-site data is not protected at all under the Fourth Amendment? According to the Fourth Circuit, the other circuits are wrong because cell phone users do not voluntarily convey their location and don't know which specific cell sites are receiving the information. As a result, the third-party doctrine doesn't apply:
We decline to apply the third-party doctrine in the present case because a cell phone user does not "convey" CSLI to her service provider at all—voluntarily or otherwise—and therefore does not assume any risk of disclosure to law enforcement.
The service provider automatically generates CSLI in response to connections made between the cell phone and the provider's network, with and without the user's active participation. See Augustine, 4 N.E.3d at 862 ("CSLI is purely a function and product of cellular telephone technology, created by the provider's system network at the time that a cellular telephone call connects to a cell site."); id. at 863 (describing CSLI as "location-identifying by-product" of cell phone technology). "Unlike the bank records in Miller or the phone numbers dialed in Smith, cell-site data is neither tangible nor visible to a cell phone user." In re Application of U.S. for Historical Cell Site Data, 747 F. Supp. 2d 827, 844 (S.D. Tex. 2010), vacated, 724 F.3d 600 (5th Cir. 2013). A user is not required to actively submit any location-identifying information when making a call or sending a message. Such information is rather "quietly and automatically calculated by the network, without unusual or overt intervention that might be detected by the target user." Id. at 833. We cannot impute to a cell phone user the risk that information about her location created by her service provider will be disclosed to law enforcement when she herself has not actively disclosed this information.
Notably, the CSLI at issue in this appeal details location information not only for those transmissions in which Appellants actively participated—i.e., messages or calls they made or answered—but also for messages and calls their phones received but they did not answer. When a cell phone receives a call or message and the user does not respond, the phone's location is identified without any affirmative act by its user at all—much less, "voluntary conveyance." . . . .
Users' understanding of how cellular networks generally function is beside the point. The more pertinent question is whether users are generally aware of what specific cell sites are utilized when their phones connect to a cellular network. After all, it is the specificity with which CSLI identifies cell sites that allows users' location to be tracked and raises privacy concerns. We have no reason to suppose that users generally know what cell sites transmit their communications or where those cell sites are located. A cell phone user cannot be said to "voluntarily convey" to her service provider information that she never held but was instead generated by the service provider itself without the user's involvement.
The court also invokes the idea of equilibrium-adjustment:
It turns out that the proliferation of cellular networks has left service providers with a continuing stream of increasingly precise information about the locations and movements of network users. Prior to this development, people generally had no cause for concern that their movements could be tracked to this extent. That new technology has happened to generate and permit retention of this information cannot by itself displace our reasonable privacy expectations; nor can it justify inspection of this information by the government in the absence of judicially determined probable cause. . . .
If the Twenty-First Century Fourth Amendment is to be a shrunken one, as [Judge Motz in dissent] proposes, we should leave that solemn task to our superiors in the majestic building on First Street and not presume to complete the task ourselves.
Further, the Eleventh Circuit was wrong in concluding that no warrant was required for such records. Under the Fourth Amendment, the "search" of seeking extended records requires a warrant if no exception to the warrant requirement applies:
The en banc Eleventh Circuit recently held that, assuming government acquisition of CSLI through use of a § 2703(d) order is a Fourth Amendment search, such a search would be reasonable under the Fourth Amendment and not require a warrant. United States v. (Quartavious) Davis, 785 F.3d 498, 516-18 (11th Cir. 2015) (en banc). . . . We decline here to create a new exception to a rule so well established in the context of criminal investigations.
Because warrants were not obtained, the Fourth Amendment was violated.
III. The (Lack of) Remedy
Good news for Graham and Jordan? Well, not exactly. The Fourth Circuit next holds that the records should not be suppressed anyway because the government relied in good faith on the Stored Communications Act. Agreeing with the Fifth Circuit and disagreeing with the Third Circuit, the court concludes that the SCA leaves the option to the government to get an intermediate court order instead of a warrant for cell-site data. The government's reliance on the statute triggers the good-faith exception to the exclusionary rule:
[T]here was no decisional authority in this Circuit suggesting that the choice presented in § 2703(c) was unconstitutional as applied to CSLI from cell phone service providers. We conclude, therefore, that the government reasonably relied on the SCA in exercising its option to seek a § 2703(d) order rather than a warrant. The good-faith exception applies. [FN: Now that we have determined that law enforcement violates the Fourth Amendment when it acts without a warrant to obtain an individual's long-term CSLI, its choice under § 2703(c) is constrained. The government may no longer rely on the statute to justify an election not to secure a warrant for this information.]
Judge Motz dissents as to the Fourth Amendment holding because in her view the third-party doctrine plainly applies. Her dissent concludes:
Time may show that my colleagues have struck the proper balance between technology and privacy. But if the majority is proven right, it will only be because the Supreme Court revises its decades-old understanding of how the Fourth Amendment treats information voluntarily disclosed to third parties. Today the majority endeavors to beat the Supreme Court to the punch. Respectfully, I dissent.
Where is all of this going? The Supreme Court, perhaps. In my next post, I'll cover the prospects for Supreme Court review and how the Justices might rule if they take the case.