In a major setback for privacy advocates, a U.S. appeals court on Tuesday ruled that cellphone location data is not protected by the Fourth Amendment and can be collected without a warrant.
By a 12-3 vote, the 4th Circuit Court of Appeals in Richmond, Virginia upheld what is known as a third-party doctrine, which states that consumers who willingly give information to outside parties—like telecommunications companies—have "no reasonable expectation of privacy" for that data, regardless of what it reveals. The case is United States v. Graham, in which two defendants were tracked by police without warrants for several months in 2010 and 2011 as part of an armed robbery investigation.
The ACLU discovered in 2015 that the collected data revealed information that went beyond the scope of the case—including that the wife of defendant Aaron Graham was pregnant.
And as the Electronic Frontier Foundation senior staff attorney Jennifer Lynch noted in a blog post on Tuesday, "the Fourth Circuit took the third party doctrine further than any case we've seen so far."
The court held that it didn’t matter if cell site location information could reveal sensitive information about our lives; it didn’t matter how many days worth of data the government got from the service provider; and it didn’t even matter whether we had any idea the phone was generating the data or had any real control over when or where the phone generated data. Purely because that data was shared with a service provider, the Fourth Amendment didn’t protect it.
[....] Now, more than ever, it’s clear that the only way to “assure preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted” is for the Supreme Court to revisit and overturn the third party doctrine.
The judges in the minority wrote an unreserved dissenting opinion, stating, "Only time will tell whether our society will prove capable of preserving age-old privacy protections in this increasingly networked era. But one thing is sure: this Court's decision today will do nothing to advance that effort."
Citing the third-party doctrine, Judge Dana Mortz wrote for the majority opinion (pdf) that U.S. Supreme Court precedent "mandates this conclusion."
The ruling overturns a previous decision in 2015 by the lower court's three-judge panel, which found that police do need a warrant to collect cell phone location data. That decision relied on another legal principle known as the mosaic theory, which holds that seeking a large number of data points can eventually amount to an unlawful search and seizure.
Tuesday's ruling comes after similar decisions by the 5th, 6th, and 11th circuit courts. The previous split in the lower courts indicated that the Supreme Court could take up the case, but Reuters reports that Tuesday's opinion makes it less likely.
Nate Wessler, a staff attorney with the ACLU's Speech, Privacy, and Technology Project, told The Intercept that he was hopeful the case would not end at Tuesday's ruling.
"In virtually every one of these cases, there have been very strong dissents. That in itself is a very strong message to the Supreme Court," he said.