Appeals Court: No Warrant Needed to Get Cellphone Location Data

Ruling overturns panel decision in favor of privacy rights.


Source: Pixabay

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."

He warns:

"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.

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  1. The judges are either technologically illiterate or they just don’t give a fuck. It’s pathetic.

    1. They’re just doing their job, which is to show deference to the other branches of government. Checks and balances are so quaint. Nobody believes in that anymore. Now it’s all about “doing something” and “getting things done.” Besides, nobody wants to be labeled “soft on crime.”

  2. Asking again –

    Is “cell location data” as referenced by the court meaning the info that is transmitted when your phone pings the nearest towers, or are they referencing GPS data, which is usually something that can be turned off?

    pls, no “Yes”

    (narrows gaze @ Rufus)

    1. It’s whatever the parallel construction needs it to be.

    2. I’m pretty sure it’s the former.

    3. or, is it in fact “any or neither”? and if you don’t fucking know, don’t bother.

    4. This article from The Atlantic seems to indicate that it’s the “pings” that cannot be turned off:

      Here’s how this works, technically: At the beginning and end of every call, a cellphone checks in with its mobile carrier. The cell provider notes the phone’s approximate location?the cell tower that it’s closest to, its approximate relationship with the tower?and saves it to its servers.

      In the past five years, the extent and specificity of this data has likely increased. Smartphones check in much more often than plainer feature phones, communicating with the carrier?and thus registering location data?whenever they receive a push notification or download something in the background.

      1. Also the ruling text indicates it’s the “pings”, not GPS:

        This historical CSLI indicated which cell tower — usually the one closest to the cell phone —
        transmitted a signal when the Defendants used their cell phones to make and receive calls and texts.

        GPS is only mentioned in the ruling with reference to “other” cases, precedents, etc.

        1. GPS data is an obvious extension of the ruling. By being there, you obviously consent to letting the government know you are there. Or you would have left your cell phone at home.

      2. Thanks, that’s what i figured.

        its also probably ‘any and all’, as phones can operate differently depending on how they’re being used

    1. Sheesh, I’ll do it for $500K: “Your institution is insufficiently diverse.”

      1. The funny thing is they NEED a deeply critical report. Much like bolstering their rape stats it shows they’re “doing something.”

        1. They’re paying top dollar for a fabricated report excoriating their mythical racism. It’s beyond parody.

    2. Can’t they just check their enrollment and payroll records vs. Census stats for the area?
      I’ll do the audit for 10K.

  3. Here’s a question about expectation of privacy. Could the phone companies, etc. added something to their agreements saying that they would protect the privacy of your information? And wouldn’t that create an expectation of privacy? Or is “expectation of privacy” another one of those legal terms that doesn’t mean what the plain words say?

    1. The cellphone companies exist at the whim of the regulatory state. They’re not terribly inclined to fight back.

    2. I’m sure that “compelling government interest” would negate the agreement.

  4. The Third Party doctrine will live on in its terribleness forever.

  5. OT: Top Hillary aide suffers memory loss in deposition

    In testimony Friday that lasted seven hours, three attorneys representing Mills and four from the Justice Department interrupted Judicial Watch attorneys approximately 250 times, shouting “objection” to argue why Mills should not answer the question posed. When Mills finally did answer, she responded “I don’t recall” 40 times and “I don’t know” to another 182 questions.

    Charge Mills and her attorneys with contempt. Then get Hillary to testify — in public, since she has nothing to hide.

      1. It truly is a meme for all occasions. May it live forever.

  6. …And there’s the nutpunch.

  7. I don’t get this. Sure, maybe I as a user don’t have an expectation of privacy, but so what? Doesn’t the ACTUAL PHONE COMPANY have an expectation of privacy over their property? I thought in this country everyone has protection from unwarranted searches of our property- including corporations.

    Is it that the Phone Companies can’t ask for a warrant, or that they are happily providing that information?

    1. FCC: Hi AT&T, nice license you have there. Be ashamed if something happened to it…

      SEC/IRS: Be a damned shame if your last quarterly filing required some additional audit work…

      CFPB: Be a damned shame if we thought you were overcharging customers with BS fees…

      AT&T: Oh those, files. Here you go.

  8. Skirting the issue, the judges are. The point is that the government wants something it did not create and does not own. It needs to ask permission from the owners and creators.

  9. cellphone users do not have an expectation of privacy with their location data

    How many cellphone users did they ask? Since the relevant test seems to be their expectations, one would hope there is some evidence of what those expectations are.

    1. Ask? Oh, that’s funny. They don’t ask. They decide. That’s was a good one though. I got a chuckle out of ti.

    2. They used the This Is Known study. Very extensively cited.

    3. I wonder, if you were to actually ask people:

      “Do you expect that law enforcement can track wherever you have been through cellphone data created automatically?”

      “Do you expect that information generated by your phone about all your movements is private?”

      What would the responses be? 80% “expectation of privacy”? Higher?

      1. I’m afraid a significant percentage would say, if you’ve done nothing wrong, you’ve got nothing to hide.

  10. So the way to keep your information secure is to not share it with third parties. So the government would be OK with me doing all my business in person, using cash. Not problem.

    1. Just don’t use cash for large transactions, as that must be reported.
      And don’t use cash for smaller transactions, since those are illegal because obviously you’re dodging the reporting requirements for larger transactions.

      1. Check and mate.

  11. Slumber mights seem to know which way is up alright. wow.


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