For First Time, Appeals Court Rules Warrant Is Required for Cell Phone Location Tracking

For the first time, a federal appeals court has ruled that law enforcement must obtain a warrant to get people's phone location histories from their cell service companies.

"The court's opinion is a resounding defense of the Fourth Amendment's continuing vitality in the digital age," said American Civil Liberties Union Staff Attorney Nathan Freed Wessler, who argued the case before the 11th Circuit Appeals Court as a friend-of-the-court in April. "This opinion puts police on notice that when they want to enlist people's cell phones as tracking devices, they must get a warrant from a judge based on probable cause. The court soundly repudiates the government's argument that by merely using a cell phone, people somehow surrender their privacy rights."

In the case, the government obtained four people's cell phone location records from their wireless carrier over a 67-day period for a robbery investigation. To get the information, the U.S. Attorney's Office in Miami got what is known as a "D-order" from a federal magistrate judge, named for the applicable section of the federal Stored Communications Act. However, the standard for getting a D-order is that it be "relevant and material" to an investigation, which is lower than the probable cause standard required by the Fourth Amendment. Although getting D-orders for location information has been a common law enforcement practice, the appeals court rejected it.

"There is a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute," the three-judge panel wrote in a unanimous opinion. "In short, we hold that cell site location information is within the subscriber's reasonable expectation of privacy. The obtaining of that data without a warrant is a Fourth Amendment violation."

For one suspect, Quartavious Davis, police got 11,606 location records - an average of 173 points each day. Davis was convicted based largely on the cell phone location evidence, and he appealed. Despite the court's ruling that the government should have gotten a warrant, the conviction will stand because the court determined that law enforcement relied in good faith on the decision of a magistrate judge to issue a D-order. However, going forward the warrant requirement will apply in the jurisdiction of the 11th Circuit, which covers Florida, Georgia, and Alabama. The ruling is also likely to be used by courts around the country that take up the issue.

The ACLU, the ACLU of Florida, Center for Democracy & Technology, Electronic Frontier Foundation, and National Association of Criminal Defense Lawyers filed an amicus brief in the case, U.S. v. Davis. A similar case, U.S. v. Graham, is currently awaiting decision in the Fourth Circuit, and the groups have filed an amicus brief in that case as well.

Today's ruling is at:
aclu.org/sites/default/files/assets/q_davis_opinion_0.pdf

More information on the case is at:
aclu.org/blog/technology-and-liberty-national-security/aclu-challenges-67-days-warrantless-cell-phone