Posted on 05/31/2016 4:12:05 PM PDT by Swordmaker
COURTS ACROSS THE COUNTRY are grappling with a key question for the information age: When law enforcement asks a company for cellphone records to track location data in an investigation, is that a search under the Fourth Amendment?
By a 12-3 vote, appellate court judges in Richmond, Virginia on Monday ruled that it is not — and therefore does not require a warrant.
The 4th Circuit Court of Appeals upheld what is known as the third-party doctrine: a legal theory suggesting that consumers who knowingly and willingly surrender information to third parties therefore have “no reasonable expectation of privacy” in that information — regardless of how much information there is, or how revealing it is.
Research clearly shows that cell site location data collected over time can reveal a tremendous amount of personal information — like where you live, where you work, when you travel, who you meet with, who you sleep with. And it’s impossible to make a call without giving up your location to the cellphone company.
“Supreme Court precedent mandates this conclusion,” Judge Diana Motz wrote in the majority opinion. “For the Court has long held that an individual enjoys no Fourth Amendment protection ‘in information he voluntarily turns over to [a] third part[y].’” The quote was from the 1979 Supreme Court case Smith V. Maryland.
The 5th, 6th, and 11th circuits have reached the same conclusion.
However, there’s been a lot of disagreement within the lower courts and among privacy advocates that the third party doctrine is consistent with the way people live their lives in the digital age — primarily on their cellphones.
A three-judge panel of the 4th Circuit in fact first ruled last August that getting cell-site records in bulk did constitute a search, triggering a warrant requirement. In the case, United States v. Graham, the government obtained 221 days’ worth of records belonging to a robbery suspect in Baltimore.
The panel’s opinion relied heavily on a separate legal theory to come to that conclusion called mosaic theory: The argument that even if one instance of evidence gathering doesn’t count as a search, asking for a large number of data points can eventually amount to one.
For a while, it looked like there might be a split in the lower courts that would require the Supreme Court to reconsider the third party doctrine.
But now that the 4th Circuit has ruled, that seems less likely.
Privacy advocates were disappointed:
The three judges in the minority wrote a strongly worded dissent.
“Only time will tell whether our society will prove capable of preserving age-old privacy protections in this increasingly networked era. But one thing is sure: this Court’s decision today will do nothing to advance that effort. I dissent,” Judge James Wynn wrote, joined by Henry Floyd and Stephanie Thacker.
“This is a sign that lower courts are still following the third-party doctrine,” Orin Kerr, law professor at George Washington University Law School, wrote in an email to The Intercept. “I think the 4th Circuit correctly applied Supreme Court law. But that doesn’t tell us what the Supreme Court might do.”
While this case “removes the circuit split,” he wrote, a Supreme Court consideration of third-party doctrine issues “will probably happen eventually.”
Nate Wessler, a staff attorney with the American Civil Liberties Union’s Speech, Privacy, and Technology Project, said he remains hopeful.
“In virtually every one of these cases, there have been very strong dissents. That in itself is a very strong message to the Supreme Court,” he said.
He also pointed out that many judges in the majority on these cases have signaled that it may be time for the Supreme Court to revisit the issue. And in several of the appellate cases, judges have called on Congress to do something about it.
Congress is poised to consider the privacy implications of searching stored emails, Wessler said, pointing to popular reform in Congress of the Electronic Communications Privacy Act, which passed the House unanimously, requiring law enforcement to get a warrant to search old emails.
“Hopefully they can muster the same for location information,” he said.
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I don't think this "bloodless Revolution" thing is going to work out.
I think we're headed for the other kind...
But Vote Trump in the meanwhile!
Not enough laws can ever be written to protect the stupid.
I’m not so sure I agree with that. I think there’s a legitimate question about how much “privacy” someone can have when so much of the allegedly “private” information is in the hands of a nameless, faceless corporate bureaucracy that employs tens of thousands of people.
.
Ready for the “Beast” to arrive on schedule!
.
ELECTRONIC FRONTIER FOUNDATION; NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND; CENTER FOR DEMOCRACY & TECHNOLOGY; AMERICAN CIVIL LIBERTIES UNION FOUNDATION; DOWNSIZEDC.ORG; DOWNSIZE DC FOUNDATION; GUN OWNERS FOUNDATION; GUN OWNERS OF AMERICA, INC.; INSTITUTE ON THE CONSTITUTION; REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS; UNITED STATES JUSTICE FOUNDATION; CONSERVATIVE LEGAL DEFENSE AND EDUCATION FUND,and Amici Supporting Appellant.
At least it’s not in the hands of the omnipotent government and its myriad agencies.
If it’s considered a “willing” surrender by the consumer, there should be an opt-out clause. I don’t recall seeing any language to that effect in the contract I signed with the cellular service provider.
The immediate remedy is the cell phone will have NO SIGNAL on command!
Where’s my durn chip? (Hand extended)
Aside from the fact an I phone is a computer with a phone ap, it is first and foremost a radio. It receives and transmits radio signals.
There is no privacy with a signal broadcast on radio waves
Score one for people like me who don’t carry a cell phone and don’t care if you can reach me or not.
The sad part is this will work to the advantage of crooks
Just give your cell phone to a friend tell him to drive where ever
Go do what ever evil you want and when it comes up in court your cell phone is your alibi
And some poor stuck who was just driving in the area will go to jail for it because he was there
I can attest to the truth of that.
I had a scanner so I could receive transmissions from the fire department I volenteered to serve.
I could pick up and listen to cell phone conversations.
Newt could probably attest to this too
So, if I were to send a box of sand on a ship or truck they could open every container without warrant?
As the judiciary is comprised of government workers, I can't say that I am surprised when goverment judges rule in favor of more government.
The judiciary is not comprised of philosopher kings.
#zerogovernment
a cellphone is a two-way radio.
it is constantly transmitting your location
............
suppose there is an armed robbery.
the cops are going to investigate
every cellphone in the area.
who is not suppose to be there?
anybody could be a lookout.
I think those are the Amici, not Appellants (and a more disparate group would be hard to find!). Aaron Graham appears to be the sole Appellant.
When I and a few others reviled the PATRIOT act there were folks on FR who said “If you aren’t doing anything wrong, what do you have to worry about”.
Sorry, you are correct.
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