Cellphone Location Tracking: Heading to the Supreme Court?

Circuit Court panel demands police seek a warrant.


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Credit: Digitalgenetics |

We may have a federal court split coming, ladies and gentlemen. A 4th Circuit Court of Appeals panel has just ruled that police need a warrant to get cellphone location data from third parties while investigating crimes. This ruling contradicts a May decision from the 11th Circuit that determined that such records fall under "third-party" collection rules and that citizens have no expectation of privacy. Here's the Associated Press on yesterday's decision:

The American Civil Liberties Union said the decision by a three-judge panel of the 4th U.S. Circuit Court of Appeals conflicts with two other federal appeals court rulings and increases the possibility that the U.S. Supreme Court will take up the issue. Attorneys last week asked the Supreme Court to review an appeals court ruling in a Florida case that said search warrants are not required.

The case in the Richmond-based appeals court involved two men who were convicted of a series of armed robberies in the Baltimore area. The court said authorities who obtained cellphone tower records tracking the suspects' movements without a warrant violated the U.S. Constitution's prohibition against unreasonable searches.

"Today's opinion is a full-throated defense of Fourth Amendment privacy rights in the digital age," said Nathan Freed Wessler, an attorney with the ACLU Speech, Privacy and Technology Project.

There's an issue, though, before the case heads up to the Supreme Court. This was a panel ruling, not the full court. In the 11th Circuit, a three-judge panel made the same decision as the 4th Circuit panel here—that cell phone location records are private and cell users have a reasonable expectation they'd be kept that way. But the full 11th Circuit Court of Appeals overruled the panel's decision, leaving the status quo intact. The same could happen here. The dissenting judge in the panel decision invoked the familiar "third-party" doctrine and said phone users should have no expectation of privacy of data being held outside companies.

If the full court does agree with the panel, though, then we'll have two federal courts in disagreement over whether cell location data is private information requiring a search warrant to access. If that happens, the Supreme Court would almost certainly have to take up the matter.