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Oral Arguments in Warrantless Cell Tower Location Data Requests Case

By William Peacock, Esq. on December 17, 2014 6:08 PM

This is an early contender for a Supreme Court case -- assuming, of course, one of the parallel cases in a burgeoning circuit split doesn't make it onto the High Court's docket first.

The facts are relatively unremarkable: Aaron Graham and Eric Jordan were convicted of robbery after prosecutors used a court order -- not a warrant -- to obtain historical cell phone tower location data tied to their phones. This same scenario has played out twice before in appeals cases -- in the Fifth and Eleventh Circuits -- with mixed results.

How is it looking for these two defendants? There was no clear indication from the oral arguments, with the judges expressing concerns over both the government's and defendants' positions.

What Is Location Data?

Every step you take. Every move you make. Every call you take, your phone is pinging nearby cell phone towers for a signal.

Depending on the number of towers in your vicinity, the location data can be good enough to give a pretty decent approximation of your location (within a few miles or so). And this is even without your GPS chip transmitting data -- it's cellular signals only, so every phone, from Motorola Star-Tac flip phones to the iPhone 6 sends this data. Unless, of course, the phone is completely turned off.

Problematic Precedent

Smith v. Maryland. In 1979, when your mother was still using a rotary phone, the Supreme Court held that every time you dial a phone, you are transmitting that phone number to a third party (the phone company) and therefore you have no reasonable expectation of privacy. Pen registers, therefore, did not require a warrant.

To me, saying Smith v. Maryland controls is a bit of a stretch. Yes, you are voluntarily carrying a phone, and ardent geeks know that our phones are pinging towers, but to a casual user, it probably sounds like science fiction that they are giving up their location to their cell phone provider and to any snooping law enforcement agency as long as they are carrying a phone. Your phone constantly pings, checking for text messages and staying ready for incoming calls.

Of course, you came here for the judges' opinions, not mine. Here are a few notes on the oral arguments, from the Blog of Legal Times' recap:

  • Judge Diana Motz, comparing Smith to the present case, asked: "Can't you make an argument that the information you got from the pen register was a deeper, wider set of information than the information you get from the [cell tower] ping? You actually know the time, and you know the frequency of the call. You know to whom you are calling. You know where it's going from."
  • Judge Andre Davis expressed concern over the unlimited scope of the government's interpretation of the third-party doctrine, asking: "So does this mean for every 7-Eleven robbery, every McDonald's robbery, every gas station robbery in America, the United States attorney could theoretically go to a magistrate judge and say 'We want all the cell site location data for every phone within a two-hour period of the robbery.' And you probably already have algorithms in place that in about two minutes could identify, you know, the 19 phones that were talking to each other within a mile and a half of the robbery location during the robbery."
  • When counsel responded to Davis' concerns with an anecdote about a kidnapping where the perpetrator and victim were located using cell phone tower data, Davis cut back: "That sounds like exigent circumstances from here to Sunday. Here, you had guys in custody."

A recording of the oral arguments is available here.

Likely Circuit Split

In 2013, the Fifth Circuit sided with the government and held that cell phone owners have no reasonable expectation of privacy in their location data. But last year, an Eleventh Circuit panel went the other way, and held that there was an expectation of privacy (and therefore, a warrant was required before the data could be handed over to law enforcement).

A petition for rehearing en banc is pending in the Eleventh Circuit case, so there is still a shot that there will be no circuit split, especially if the Fourth Circuit sides with the Fifth Circuit. Either way though, this seems like an issue that is likely to head to the Supreme Court certiorari pool.

Would the Court grant the case? Grants are unpredictable, obviously, but a circuit split would make it more likely. And the Court's Jones decision from 2012, holding that warrantless GPS tracking was unconstitutional, carries a lot of the same issues, with the third-party disclosure wildcard tossed in.

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