Third-party doctrine and historical cell-site location information

US v. Graham:  Upon rehearing en banc, the Fourth Circuit revised its earlier position in this case, finding instead that no Fourth Amendment violation occurs when the government obtains historical cell-site location information (CSLI) from a cell phone provider.  Under the Supreme Court’s third-party doctrine, an individual maintains no Fourth Amendment protection over information voluntarily turned over to a third party.  This holding falls in line with all of the sister circuits’ holdings on this issue.

Pertinently, the government conducted no tracking or surveillance here; rather, it obtained the CSLI from the cell phone provider pursuant to a search warrant.  The Fourth Circuit refers to a myriad of federal cases that permit the government to acquire similar third-party records, even when individuals do not “actively choose to share” the information contained in those third-party records.

The Supreme Court, according to the Fourth Circuit, has delineated clearly between contents of communications and the non-content information that enables communications providers to transmit the content, and CSLI “undeniably” belongs in the non-content category of information.

Moreover, the Fourth Circuit notes that Congress could grant individuals greater privacy protection over CSLI, as the legislative branch is “better positioned to respond to changes in technology than are the courts.”