4th Circuit rules that obtaining cell site location data requires a warrant

The U.S. Court of Appeals for the Fourth Circuit ruled this week in United States v. Graham that requests by law enforcement authorities to obtain and examine historical cell site location data for individual cellular subscribers constitutes a search under the Fourth Amendment and therefore requires a search warrant. In its 2-1 ruling, the Circuit Court explicitly rejected the third-party doctrine approach that both the Fifth and Eleventh Circuits have relied on in contrary rulings finding that reviewing cell site location data – which, the doctrine holds, subscribers voluntarily give to cellular network providers and therefore in which they can have no reasonable expectation of privacy – doesn’t constitute a search. In the specific case the Fourth Circuit heard, the fact that the majority believed the government erred by obtaining a court order under the Stored Communications Act (SCA) instead of a search warrant as required under the Fourth Amendment did not materially impact the outcome for the appellants, as the Circuit Court upheld their convictions and essentially forgave the government because it acted in good faith when it relied on the SCA.

The split among appellate courts on the privacy of cell site location data (among other issues) raises the likelihood that this issue will need to be addressed by the U.S. Supreme Court, just as it has done with global positioning system (GPS) data. In United States v. Graham, the judges seemed to be willing to put cell site location data on the same logical footing as GPS data. Despite the fact that cell site location data is far less precise in determining an individual’s location, the fact that cellular devices are small and usually carried by an individual as they go from public to private locations means, according to this court at least, that cellular device users do have some reasonable expectation of privacy when the cell site location data covers a significant period of time (no court has yet provided a clear standard as to how long is “long enough” to reach the level when a search warrant should be required).