Chalk up another win for the third-party doctrine. The 4th U.S. Court of Appeals (in Virginia) has ruled in a 12-3 vote that cellphone users do not have an expectation of privacy with their location data and that police can get that information from phone companies without a warrant.
The majority ruling invoked the third-party doctrine, which has typically been the case in these rulings. In Supreme Court cases from the 1970s, the court ruled that a person has no expectation of privacy for records or information that he or she voluntarily turns over to third parties. Back in the day, these cases were referring to things like very simple phone call records logged by telecoms or bank deposit slips. The amount of information that is available about us through third-party records has dramatically increased, but the precedent has not yet be reconsidered by the top court.
This ruling may end up preserving the status quo. There have been several cases challenging the idea that phone location data should count as a third-party record, but so far courts have been upholding the precedent (eventually in this case, since a smaller panel initially ruled otherwise). Typically, the Supreme Court will take on a case like this when there are split rulings between federal courts. That's not the situation at the moment. However, in United States v. Jones, a case from 2012 where the Supreme Court ruled that law enforcement must get a warrant to place a GPS tracker on a vehicle, Justice Sonia Sotomayor said in a concurrent opinion that it may be time for the Supreme Court to reconsider or re-evaluate when the third-party doctrine should apply in this new digital age.
In the dissenting opinion in this case, which involved authorities collecting more than 200 days of data and close to 30,000 locations, Judge James Wynn questioned whether all this information was actually "voluntarily conveyed" to third parties. He points out that previous third-party doctrine rulings were based on the idea that a person, for example called a phone number (thus giving the phone company the information about who he wanted to talk to) or deposited money in a bank (thus voluntarily giving the bank information about the transaction). By contrast, we now give out information about ourselves just by having the cellphone on us, without doing anything at all. From Wynn's dissent:
"[T]here is no reason to think that a cell phone user is aware of his CSLI [cell-site location information], or that he is conveying it. He does not write it down on a piece of paper, like the dollar amount on a deposit slip, or enter it into a device, as he does a phone number before placing a call. Nor does CSLI subsequently appear on a cell phone customer's statement. …
In sum, because a cell phone customer neither possesses knowledge of his CSLI nor acts to disclose it, I agree with the Third Circuit that he "has not 'voluntarily' shared his location information with a cellular provider in any meaningful way."
"What this elucidates is the extraordinary breadth of the majority's decision today. It is not bounded by the relative precision of location data, by the frequency with which it is collected, or by the statutory safeguards Congress has thought it prudent to enact. The majority's holding, under the guise of humble service to Supreme Court precedent, markedly advances the frontlines of the third-party doctrine. The Fourth Amendment, necessarily, is in retreat."
Read the full ruling here.