With the Fourth Circuit's decision in United States v. Graham, there is now a significant split among the federal circuits as to whether a search warrant is required for law enforcement to obtain a person's cell tower records.
The Fourth Circuit Court of Appeals held that cell phone users have a reasonable expectation of privacy in their “cell-site location information” (CSLI) and therefore a search warrant is required to obtain this information from the cell phone provider. The Court refused to follow the decisions of the Fifth and Eleventh Circuits which previously held that this information did not implicate the Fourth Amendment’s search warrant requirement. See our previous post, 11th Circuit: Warrant is Not Required to Obtain Cell Tower Records.
The Court reasoned that because “[e]xamination of a person’s historical CSLI can enable the government to trace the movements of the cell phone and its user across public and private spaces and thereby discover the private activities and personal habits of the user,” cell phone users have a reasonable expectation of privacy in this information. The Court equated this to information obtained from GPS tracking devices—for which search warrants are now required per the U.S. Supreme Court’s decision in United States v. Jones.
The dissent cited the “third-party doctrine” in concluding that the customer has no reasonable expectation of privacy in information that he or she voluntarily discloses to a third party. The majority, however, appeared concerned about the future implications of the third-party doctrine and cautioned that a person’s constitutional protections could eventually be swallowed up by this exception as cell phone and internet providers continue to gather more and more extensive information about their customers. Moreover, the majority noted that very few customers are even aware as to when and what cell towers their phones are being connected to.
With this clear divide among the circuits, this issue appears ripe for Supreme Court review. The defendant in United States v. Davis (the Eleventh Circuit case) has filed a petition for certiorari and we will wait and see if the Supreme Court agrees to address this important constitutional issue.
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