In a move that makes you want to ditch your smartphone or invest in third-party privacy software, the Fourth Circuit Court of Appeals has affirmed that it is still perfectly legal for the government to track your location through your cellphone.
Cell-site location information or CSLI is data created by cell phone providers each time a consumer places a call or sends a text. CSLI is frequently used during investigations by law enforcement to track the past locations of a suspect. For example, AT&T reported 60,000 law enforcement requests for CSLI in 2015. The debate over CSLI begins with the fact that CSLI is created by the cell phone provider and not the consumer, so the information can be obtained by the government through the third-party doctrine.
“No reasonable expectation of privacy”
The third-party doctrine allows the government to access information that was willingly given to third parties, like banks and internet service providers. The doctrine does not require that the government receive a warrant, as using these services comes with “no reasonable expectation of privacy”.
Applied to CSLI, the third-party doctrine allows law enforcement agencies to obtain location data as far back as they want without a warrant. Law enforcement only has to show that the records are relevant to the investigation, and does not need to prove probable cause. However, it does not allow law enforcement to track an individual’s whereabouts in real time without a warrant.
Opportunity for Supreme Court Ruling Lost
Privacy proponents have been pushing the Supreme Court to take a case that addresses CSLI, but the chances of that happening this year were dashed recently after a decision from the Fourth Circuit U.S. Court of Appeals. The court affirmed previous rulings made by three other federal circuits (5th, 6th, and 11th) in a 12-3 decision in against requiring a warrant for CSLI. The decision ended hopes that arose in August of 2015, when a smaller three-judge panel of the Fourth Circuit ruled that law enforcement would need a warrant.
A judge in the majority, Diana Gribbon Motz, explained that the appellate court’s ruling was a foregone conclusion, as Supreme Court precedent has continually affirmed the third-party doctrine. Motz continued to say that the subject would only be revisited if the Supreme Court chose to narrow the scope of the doctrine or decided to phase it out entirely. The three judges in the minority wrote in their dissenting opinion that it is time for privacy laws to catch up with technology.
Legal experts predict that a circuit split will happen within the next couple of years around CSLI, since 51 state superior courts have not ruled on the issue and it is likely that one of those courts will reject precedent. Circuit splits happen when two or more circuit courts of appeals come to different conclusions on the law, and the Supreme Court intervenes for clarification.
Some privacy advocates want to lobby the Federal Trade Commission to enhance consumer protections when it comes to controlling their own personal data. Others are pushing for Congress to get involved, and hope that the recent passage of the Electronic Communications Privacy Act in the House signals a willingness to take on issues concerning technology and warrants.
An individual’s location data is extremely personal. It details their home, their work, their activities and their loved ones, and many would argue that the “reasonable expectation of privacy” clearly applies. Information this intimate should absolutely require a warrant.