11th Circuit court says no warrant needed for cell site location data

In a 9-2 ruling issued on May 5, a full 11-judge panel of the U.S. Court of Appeals for the 11th Circuit rejected one of its own panel rulings to decide that law enforcement authorities do not need to get a warrant to obtain cell tower location records or other business records created and maintained by telecommunications companies about subscribers or users of their services. In the case under consideration, United States v. Quartavious Davis, federal prosecutors had secured a conviction of Davis for multiple counts of armed robbery based in part on their introduction as evidence telephone call records from wireless carrier MetroPCS containing details of Davis’ calls over more than two months. The MetroPCS records included the numbers Davis called and the physical location information for every cell tower that connected the calls. While the cell tower location data could not precisely place Davis at the robbery sites, prosecutors used the data as evidence that Davis was at least near each of the locations around the times the crimes occurred. After his initial conviction, Davis’ attorneys appealed the decision from the federal District court to the 11th Circuit Appellate court, a three-judge panel of which upheld the convictions but ruled that the government nonetheless had violated Davis’ Fourth Amendment rights by obtaining the telephone records without a search warrant (which, it is important to note, existing law does not require).

The legal treatment of data produced by wireless carriers about the users of their cellular networks is an area of significant debate, in Congress as well as the courts, especially with respect to GPS data and cell site location data and other information that carriers gather or produce as a routine part of providing wireless service to consumer and businesses. The SCA was enacted as Title II of the Electronic Communications Privacy Act of 1986 (ECPA), the law governing most aspects of telecommunications transmissions. Because the law was written nearly 30 years ago, applying it to modern communication transmission methods – including text messaging, cell phones, and satellite navigation systems such as GPS – sometimes seems to take the law into uncertain territory. There have been multiple attempts in Congress to modernize the ECPA, including an ultimately unsuccessful effort by Sen. Patrick Leahy in 2011 to strengthen legal protection for geolocation information such as GPS coordinates and cell site location data.

The focus of the most recent ruling involves the way in which the authorities obtained the cell tower location data and other call data from MetroPCS. The government, following established procedures spelled out by statute under the Stored Communications Act (18 U.S.C. §2703), applied to a federal magistrate judge for a court order for MetroPCS’ records that were “relevant and material to an ongoing criminal investigation” as the statue requires. The law does not require the government to show probable cause to request such business records. The 11th Circuit Court opinion explicitly notes that, in this case, the government did not ask for, nor did it obtain, the contents of any telephone call, cell phone, or text message, any cell location information regarding when Davis’ cell phone was powered on but not in use for a call, or any GPS location information associated with the cell phone. Although the court order the government obtained met the applicable statutory requirements, Davis’ attorneys filed a motion to suppress the records, claiming the government’s ability to obtain and review the records constituted a search under the Fourth Amendment and therefore should have required a showing of probable cause and a search warrant. This is essentially an argument that the SCA, as codified, is unconstitutional when applied to cell tower location information. The District Court denied the motion, and the 11th Circuit ruling this week affirmed that decision. Davis’ attorneys apparently plan to appeal this decision to the U.S. Supreme Court, but it is far from certain that the Supreme Court would agree to hear the case, since other rulings at the appellate level so far seem to agree and the Court is often reluctant to take on an issue unless there is disagreement among lower courts.

In breaking down the rationale for its findings, the 11th Circuit decision seems to follow conventional Fourth Amendment analysis to determine both whether the request for cell tower location information is a search and whether the records are something for which an individual like Davis can assert a reasonable expectation of privacy. The decision cites multiple Supreme Court precedents holding that individuals cannot have a reasonable expectation of privacy for certain types of business records “owned and maintained by a third-party business.” This line of reasoning has been used to refute an expectation of privacy for the telephone numbers a caller dials, and first the Fifth Circuit and now the 11th Circuit have extended that thinking to cell tower location data and other telecommunications provider information that does not include the actual content of calls. Simply put, Davis cannot argue for the suppression of the data because, “This type of non-content evidence, lawfully created by a third-party telephone company for legitimate business purposes, does not belong to Davis, even if it concerns him.” The Court also found that Davis had “no subjective or objective reasonable expectation of privacy” regarding the cell tower location data.