Monday, August 31, 2015

Warrant Requires to Get Historical Cell Cite Info

US v. Graham: Graham and his codefendant, Jordan, were involved in a string of commercial robberies that took place in and around Baltimore. They were arrested after the last theft when they were stopped in the truck that served as a getaway vehicle. Among the evidence retrieved from the truck was a pair of cell phones, one subscribed to Jordan and the other to Graham's wife. Investigators obtained court orders, pursuant to the Stored Communications Act, to obtain cell site location information ("CSLI") from the phones. CSLI (I'm grossly simplifying here) can help determine the location of a phone over time as it interacts with various cell towers to send and receive information. Investigators were able to use the CSLI to place the phones (and, by association) Graham and Jordan near robbery sites. Graham and Jordan moved to suppress that data, arguing that investigators were required to get a warrant before obtaining it. The district court denied the motion and Graham and Jordan were convicted at trial of various counts related to the robberies.

On appeal the Fourth Circuit affirmed the convictions and the district court's order denying suppression of the CSLI. However, the court was deeply divided on the rational for doing so. The majority concluded that investigators should have gotten a warrant obtain the CSLI, but concluded that suppression wasn't appropriate because they did comply with existing law when getting a court order under the Stored Communications Act. Specifically, the investigators' inspect of "a cell phone user's historical CSLI for an extended period of time" was a "search" for Fourth Amendment purposes. It wasn't persuaded that Graham and Jordan waived any expectation of privacy based on the fine print of their contract that, the court realized, nobody actually reads. As to the data itself, it looked to the concurring opinions in the Supreme Court's recent Jones and the concerns about being able to harvest vast amounts of data. It also distinguished cases like Jones itself (and the prior beeper cases) that tracked vehicles by pointing out that a phone location is often the location of a person and can include traditionally protected places like the home.

The main fissure between the majority and the dissenting Judge Motz was over the third-party doctrine. The majority concluded that it didn't apply here because "cell phone users do not voluntarily convey their CSLI to their service providers." That is because the data accumulates even when the person isn't using the phone, such as when a text message is received or an incoming phone call isn't answered. Judge Motz, by comparison, argued that the majority's conclusion "flies in the face of the Supreme Court's well-established third-party doctrine" and that the CSLI was the same as the pen register information covered by the Supreme Court's decision in Smith. The majority recognizes that its holding is at odds with decisions of the Fifth and Eleventh Circuits.

However, the end result of both the majority and dissenting opinions are the same - no suppression.

In the midst of all this Judge Thacker wrote a brief concurrence expressing her "concern about the erosion of privacy in this era of rapid technological development" and concludes by saying "this decision continues a time-honored American tradition -- obtaining a warrant is the rule, not the exception."

UPDATE: The Government has filed a petition for rehearing in this case, which the Fourth Circuit has granted. As such, this opinion has been withdrawn.

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