Do they or don’t they? Turns out they don’t.
Virginia’s Fourth Circuit Court of Appeals on Tuesday ruled law enforcement officers do not need a warrant to obtain cell site location information from wireless carriers, after all.
The 12-3 decision, which came as part of an armed robbery case against Aaron Graham and Eric Jordan, overturned a 2015 opinion from a three-member panel of the same court.
Though the court’s three member panel previously held warrantless acquisition of these records would violate a defendant’s Fourth Amendment protections against unreasonable searches and seizures, the full court found a user’s cell phone location information is fair game because it is information “voluntarily” turned over to a third party.
The court majority said the third-party doctrine applied to wireless carriers even though that user information is given to them “on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.”
“A cell phone user voluntarily enters an arrangement with his service provider in which he knows that he must maintain proximity to the provider’s cell towers in order for his phone to function,” Judge Diana Motz wrote in the majority opinion. “Anyone who has stepped outside to ‘get a signal,’ or has warned a caller of a potential loss of service before entering an elevator, understands, on some level, that location matters.”
Motz also argued that past case precedents from cases compelled the court to rule as it did.
In a dissenting opinion, however, Judge James Wynn argued two key factors are absent in the supposed “voluntary conveyance” of cellular location information that were present in the other cases cited by Motz: knowledge that certain information is being communicated and an action to submit that information to a third party.
“There is no reason to think that a cell phone user is aware of his CSLI, or that he is conveying it,” Wynn wrote. “And even if cell phone customers have a vague awareness that their location affects the number of ‘bars’ on their phone [] they surely do not know which cell phone tower their call will be routed through, a fact even the government concedes.”
The ruling does not preclude the Supreme Court from hearing the case, but makes it less likely that it will do so. The Supreme Court last year declined to hear a similar case related to cellular location information.
According to Reuters, a panel of the Sixth U.S. Circuit Court of Appeals out of Kentucky, Michigan, Ohio and Tennessee also ruled no warrant was required for law enforcement to obtain cell phone location data. That decision has been appealed to the full court.
The Fourth Circuit Court’s decision presents a setback for privacy advocates, including the Electronic Frontier Foundation, the American Civil Liberties Union Foundation and the Center for Democracy and Technology, which filed amicus briefs in the case.
