4th Circuit Appeals Court Rolls Back Its Warrant Requirement For Cell Site Location Info

The Fourth Circuit Court of Appeals was one of the few appeals courts to rule on the constitutionality of obtaining cell site location info without a warrant. And it was -- was -- the only appeals court to find warrantless access violated the Fourth Amendment. The decision was limited to the collection of historical cell site data for extended periods of time (the court appeared to believe anything beyond two weeks was questionable), mainly because there was a good chance the records would contain considerable detail about a person's movements in private places.

The government immediately requested an en banc hearing by the Appeals Court. The hearing was granted and the court has patched up its split with the other circuits by finding in favor of the government and the Third Party Doctrine. [PDF link]

We now hold that the Government's acquisition of historical CSLI from Defendants' cell phone provider did not violate the Fourth Amendment.

Supreme Court precedent mandates this conclusion. 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]." Smith v. Maryland, 442 U.S. 735, 743-44 (1979). This rule -- the third-party doctrine -- applies even when "the information is revealed" to a third party, as it assertedly was here, "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." United States v. Miller, 425 U.S. 435, 443 (1976).

All of our sister circuits to have considered the question have held, as we do today, that the government does not violate the Fourth Amendment when it obtains historical CSLI from a service provider without a warrant. In addition to disregarding precedent, Defendants' contrary arguments misunderstand the nature of CSLI, improperly attempt to redefine the third-party doctrine, and blur the critical distinction between content and non-content information.

The Supreme Court may in the future limit, or even eliminate, the third-party doctrine. Congress may act to require a warrant for CSLI. But without a change in controlling law, we cannot conclude that the Government violated the Fourth Amendment in this case.

The nod to 1979's Smith v. Maryland is back in place, setting this decision firmly in Third Party Doctrine territory. If it's "voluntarily conveyed" to a third party, the government doesn't need a warrant to access it. The key, though, is the "voluntary" part. While the majority finds the collection of cell site location data by service providers to be somehow a "voluntary" conveyance by customers, the three dissenting judges aren't as impressed by this argument.

The dissenting opinion (starting at p. 47) goes through the majority decision's citations and sees a whole lot more voluntary effort being made by citizens than what happens during the automatic acquisition of cell site info by phone companies.

The Supreme Court, then, has intentionally employed the "voluntary conveyance" concept in every relevant case to limit the reach of an otherwise sweeping per se rule that denies Fourth Amendment protection. It seems therefore crucial here to ask: what, precisely, did the Court mean when it chose those words, in the context of those cases?

Here is what those various defendants actually did to "voluntarily convey" information. One used his finger to dial, one by one, the numerical digits of a telephone number. Smith, 442 U.S. at 741 (highlighting that pen registers disclose "only the telephone numbers that have been dialed" (quoting United States v. N.Y. Tel. Co., 434 U.S. 159, 167 (1977))). Another submitted multiple checks and deposit slips-each presumably bearing a date, a dollar amount, a recipient name, and a personal signature. Miller, 425 U.S. at 442. The others actually spoke. White, 401 U.S. at 746-47 (conversations with a bugged government informant related to narcotics transactions); Hoffa, 385 U.S. at 296 (statements to an associate "disclosing endeavors to bribe [jury] members"); Lewis, 385 U.S. at 210 (conversations with an undercover law enforcement agent in the course of executing a narcotics sale).

In all of these cases-the only cases that can bind us here- "voluntary conveyance" meant at least two things. First, it meant that the defendant knew he was communicating particular information. We can easily assume Miller knew how much money he was depositing, that Smith knew the numbers he was dialing, and that Hoffa, Lewis, and White knew about the misconduct they verbally described to another.

Second, "voluntary conveyance" meant that the defendant had acted in some way to submit the particular information he knew. Crucially, there was an action-depositing, dialing, speaking- corresponding to each piece of submitted information. And where many data pieces were compiled into records-financial records in Miller, phone records in Smith-there was presumptively a discrete action behind each piece of data. The Court never suggested that the simple act of signing up for a bank account, or a phone line, was enough to willingly turn over thousands of pages of personal data.

The dissent goes on to point out that CSLI -- unlike other "voluntarily conveyed" third-party records -- isn't even made available to the customers that generate it. Customers have access to call records, bank statements, and other information collected under the Third Party Doctrine, but there's no easily-accessible way for citizens to view the location records they're conveniently generating for the government. This lack of access to information strongly suggests the collection of cell site location data by phone companies has nothing to do with voluntary conveyance.

The majority believes that if a "fix" is required, it should be left to legislators.

The legislative branch is far better positioned to respond to changes in technology than are the courts.

This is said with a straight face before using the Electronic Communications Privacy Act as an example of legislators' prowess: a law gives the government access to the contents of any electronic communications older than 180 days -- and which has yet to be updated in any serious form by legislators over the past 30 years, even as the tech landscape surrounding it has experienced monumental changes.

The majority maintains Congress "has not been asleep at the switch" since the ECPA's institution. And it's somewhat correct. Attempts have been made to rewrite the law in reaction to the explosion of electronic communications since the mid-80s, but forward motion has been stalled by government agencies unwilling to cede ground to shifting expectations of privacy. So, yes, Congress can fix it, but it needs to run a gauntlet of agencies it's in no hurry to anger and administrations that overwhelmingly oppose any minimal contractions of government reach or power. And if Congress hasn't made any significant progress towards trimming back the Third Party Doctrine's overgrowth since 1979's Smith v. Maryland decision, it's tough to believe that this is the decade where it will finally make its move.