Begin quote from:
| Wall Street Journal | - |
A
federal appeals court in Virginia ruled Tuesday that federal agents
don't need a warrant to obtain records that show the location of a
cellphone, reversing its earlier holding and giving the government a 4-0
advantage in such cases.
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Appeals Court Rules Cell Tower Locations Not Protected Information
Virginia court rehears case and rules it falls under ‘Third Party Doctrine’
A federal appeals court in Virginia ruled Tuesday that federal agents
don’t need a warrant to obtain records that show the location of a
cellphone, reversing its earlier holding and giving the government a 4-0
advantage in such cases.
The ruling by the Fourth U.S. Circuit Court of Appeals in Richmond held that the Fourth Amendment permits law-enforcement officials access to records created by service providers that show which cell towers mobile phones connect to when they are in use.
The ruling aligns the Fourth Circuit with three other regional appeals courts and means that law enforcement officers in Maryland, North Carolina, South Carolina, Virginia and West Virginia can obtain a court order for location data by showing merely that the records are relevant to an ongoing investigation. A warrant requires a showing of probable cause.
Federal agents used such records to place Aaron Graham and Eric Jordan in the vicinity of a string of robberies in Maryland in 2011. Their lawyers argued that mapping their movements using cell tower records, even after the fact, amounted to an invasion of privacy.
The case turned on a legal doctrine that says Americans enjoy no privacy protection for information they volunteer to third parties, like bank and credit-card records, hotel bills, airline miles statements and social media profile information.
The Fourth Circuit ruled 12-3 that the Third Party Doctrine also applies to information cellphone owners give to their service providers—namely, the location of the nearest service tower their phone connects to when they send or receive calls and texts.
When someone buys a cellphone, he expects, at minimum, his provider to route outgoing and incoming calls and text messages, wrote Judge Diana Gribbon Motz for the majority.
“Whenever he expects his phone to work, he is permitting—indeed, requesting—his service provider to establish a connection between his phone and a nearby cell tower,” she wrote. “A cell phone user thus voluntarily conveys the information necessary.”
But Meghan Skelton, a lawyer for Messrs. Graham and Jordan, said: “The court’s decision lets the government surveil every American cellphone user without a warrant. The Constitution requires the government to get a warrant before it can access this intimate information.”
Rod Rosenstein, the U.S. attorney in Maryland whose office prosecuted the case, said the Fourth Circuit “reached the right decision based on precedent from the Supreme Court.”
Mr. Rosenstein said cell tower records cut both ways as evidence, sometime corroborating that a suspect was at the scene of a crime while other times pointing investigators away from a suspect who is shown to have been elsewhere.
Privacy advocates disputed that turning over such information is voluntary and said that it should receive a higher level of privacy protection because such records, in aggregate, reveal a cellphone user’s movements over long periods.
In the Maryland case, agents obtained information for 221 days, including 29,000 location-identifying data points for Messrs. Graham and Jordan each, according to the ruling.
“Even if cellphone customers have a vague awareness that their location affects the number of ‘bars’ on their phone, they surely do not know which cellphone tower their call will be routed through,” wrote Judge James A. Wynn Jr. in his dissent from the majority’s ruling.
A three-judge panel of the Fourth Circuit had ruled in August that the government required a warrant for such records, but the court voted to rehear the case with 15 judges participating.
Ms. Skelton said she would ask the U.S. Supreme Court to take up the case. The justices may be less inclined to wade into the issue now that the federal appeals courts are in agreement that no warrant is required.
Mr. Graham was convicted of federal crimes in connection with all six robberies and sentenced to 147 years in prison. Mr. Jordan was convicted of his involvement in three of the robberies and sentenced to 72 years in prison.
Write to Joe Palazzolo at joe.palazzolo@wsj.com
The ruling by the Fourth U.S. Circuit Court of Appeals in Richmond held that the Fourth Amendment permits law-enforcement officials access to records created by service providers that show which cell towers mobile phones connect to when they are in use.
The ruling aligns the Fourth Circuit with three other regional appeals courts and means that law enforcement officers in Maryland, North Carolina, South Carolina, Virginia and West Virginia can obtain a court order for location data by showing merely that the records are relevant to an ongoing investigation. A warrant requires a showing of probable cause.
Federal agents used such records to place Aaron Graham and Eric Jordan in the vicinity of a string of robberies in Maryland in 2011. Their lawyers argued that mapping their movements using cell tower records, even after the fact, amounted to an invasion of privacy.
The case turned on a legal doctrine that says Americans enjoy no privacy protection for information they volunteer to third parties, like bank and credit-card records, hotel bills, airline miles statements and social media profile information.
The Fourth Circuit ruled 12-3 that the Third Party Doctrine also applies to information cellphone owners give to their service providers—namely, the location of the nearest service tower their phone connects to when they send or receive calls and texts.
When someone buys a cellphone, he expects, at minimum, his provider to route outgoing and incoming calls and text messages, wrote Judge Diana Gribbon Motz for the majority.
“Whenever he expects his phone to work, he is permitting—indeed, requesting—his service provider to establish a connection between his phone and a nearby cell tower,” she wrote. “A cell phone user thus voluntarily conveys the information necessary.”
But Meghan Skelton, a lawyer for Messrs. Graham and Jordan, said: “The court’s decision lets the government surveil every American cellphone user without a warrant. The Constitution requires the government to get a warrant before it can access this intimate information.”
Rod Rosenstein, the U.S. attorney in Maryland whose office prosecuted the case, said the Fourth Circuit “reached the right decision based on precedent from the Supreme Court.”
Mr. Rosenstein said cell tower records cut both ways as evidence, sometime corroborating that a suspect was at the scene of a crime while other times pointing investigators away from a suspect who is shown to have been elsewhere.
Privacy advocates disputed that turning over such information is voluntary and said that it should receive a higher level of privacy protection because such records, in aggregate, reveal a cellphone user’s movements over long periods.
In the Maryland case, agents obtained information for 221 days, including 29,000 location-identifying data points for Messrs. Graham and Jordan each, according to the ruling.
“Even if cellphone customers have a vague awareness that their location affects the number of ‘bars’ on their phone, they surely do not know which cellphone tower their call will be routed through,” wrote Judge James A. Wynn Jr. in his dissent from the majority’s ruling.
A three-judge panel of the Fourth Circuit had ruled in August that the government required a warrant for such records, but the court voted to rehear the case with 15 judges participating.
Ms. Skelton said she would ask the U.S. Supreme Court to take up the case. The justices may be less inclined to wade into the issue now that the federal appeals courts are in agreement that no warrant is required.
Mr. Graham was convicted of federal crimes in connection with all six robberies and sentenced to 147 years in prison. Mr. Jordan was convicted of his involvement in three of the robberies and sentenced to 72 years in prison.
Write to Joe Palazzolo at joe.palazzolo@wsj.com
