A warrant isn’t required for police officers to ask telephone companies for customer records created by cell towers, an appeals court now says, reversing a previous ruling that had been originally hailed as a victory by privacy advocates.
On Tuesday, the 11th Circuit for the United States Court of
Appeals issued a ruling concerning the law enforcement tactics
used to indict Quartavious Davis of Florida in 2011 for a string
of robberies in the Miami region.
When Davis first stood trial, prosecutors introduced call records
obtained by MetroPCS, a cell service provider, which tied him to
the scenes of several armed robberies he had been accused of
participating in during a three-month span in 2010. A jury
ultimately convicted Davis on all 16 counts, and he was
subsequently sentenced to 162 years in prison.
Defense lawyers were quick to file an appeal. In 2014 they were
told by a three-member panel of the 11th Circuit that the
government had indeed violated Davis’s Fourth Amendment rights by
failing to obtain a warrant for the call data. Prosecutors had
instead served MetroPCS with a mere court order that didn’t
require officials to claim probable cause, and the panel agreed
to affirm the conviction but find fault with how the evidence was
acquired. Government attorneys responded by asking the full
11-member appeals court to weigh in, and this week they do so by
issuing a ruling that reverses the panel’s previous finding.
READ MORE: Warrant required to obtain phone tracking data, court rules
According to the court’s latest 9-2 vote, the acquisition of
historical cell tower location information by means of a court
order wasn’t unconstitutional because Davis lacked any
expectation of privacy with regards to those records. Rather, the
court said that the call records that prosecutors used to put
Davis near the crime scenes had been lawfully acquired because
they were obtained pursuant to the Stored Communication Act, or
SCA, which lets authorities request business records from
third-parties if specific and articulable facts exist to show
there are reasonable grounds to believe data being sought is
“relevant and material to an ongoing criminal
investigation.”
“While this statutory standard is less than the probable
cause standard for a search warrant, the government is still
required to obtain a court order and present to a judge specific
and articulable facts showing reasonable grounds to believe the
records are relevant and material to an ongoing criminal
investigation,” the court added. In fact, they continue, the
SCA “goes above and beyond the constitutional requirements
regarding compulsory subpoena process.”
En banc 11th Circuit rules historical cell-site records not protected by 4th Am under third-party doctrine: http://t.co/cB9Vew3XEC
— Orin Kerr (@OrinKerr) May 5, 2015
“To prevail on his Fourth Amendment claim, Davis must show
both (1) that the application of the SCA to the facts of his case
involved a ‘search’ within the meaning of the Fourth Amendment,
and (2) that such search was unreasonable,” Tuesday’s ruling
reads. “This Davis cannot do.”
Rather, the appeals court said that the records in question were
created for business purposes by MetroPCS and were not at any
time under Davis’ control, regardless of whether he approved of
their existence.
“Davis can assert neither ownership nor possession of the
third-party’s business records he sought to suppress. Instead,
those cell tower records were created by MetroPCS, stored on its
own premises and subject to its control,” the court ruled.
Damn third party doctrine!
— Hanni Fakhoury (@HanniFakhoury) May 5, 2015
“The records were obtained through a court order authorized
by a federal statute, not by means of governmental
trespass,” the ruling continues. “MetroPCS, not the
government, built and controlled the electronic mechanism [the
cell towers] and collected its cell tower data for legitimate
business purposes.”
At the same time, though, the latest installment in the debate
over how call data is collected may very well be the catalyst in
getting the case to the Supreme Court. Justice Robin Rosenbaum
concurred with the full court’s opinion, but wrote in Tuesday’s
ruling that the third-party doctrine “warrants additional
consideration and discussion” as it related to modern
technology.
“The reach of the majority opinion is breathtaking,”
David Oscar Markus, Davis’s attorney, told the Washington Post. “It means that the
government can get anything stored by a third party — your
Facebook posts, your Amazon purchases, your Internet search
history, even the documents and pictures you store in the cloud,
all without a warrant.”
Judge Beverly Martin, writing on behalf of the appeals court’s
two dissenting votes, raised that question as well. Under a plain
reading of the majority’s rule, she said, Americans surrender
“any privacy interest” whatsoever with regards to data
given to third-parties.
“Nearly every website collects information about what we do
when we visit,” she wrote. “So now, under the majority’s
rule, the Fourth Amendment allows the government to know from
YouTube.com what we watch, or Facebook.com what we post or whom
we 'friend,’ or Amazon.com what we buy, or Wikipedia.com what we
research, or Match.com whom we date - all without a
warrant.”
Nathan Freed Wessler, a staff attorney with the American Civil
Liberties Union’s Speech, Privacy, and Technology Project, said
in a statement: “Outdated legal doctrines from the analog age
should not be mechanically extended to undermine our privacy
rights in the voluminous digital records that come with modern
life.”
“We are pleased with the decision,” Justice Department
spokesman Peter Carr told the Washington Post. Given the recent
emergence of similar cases in federal appeals courts as of late,
however, the paper reported that it’s likely the matter of how
the SCA is used will end up before the Supreme Court before long.
“Davis and amici advance thoughtful arguments for changing
the underlying and prevailing law,” Justice Hull Tjoflat
wrote on behalf of the 11th’s circuit’s majority ruling this
week, “but these proposals should be directed to Congress and
the state legislatures rather than to the federal courts.”