[Infowarrior] - Split appeals court allows warrantless cell-site tracking

[Richard Forno]

Split appeals court allows warrantless cell-site tracking

By Josh Gerstein

05/31/16 10:57 AM EDT

http://www.politico.com/blogs/under-the-radar/2016/05/warrantless-cell-site-tracking-ruling-223728

A federal appeals court ruled Tuesday that law enforcement does not need a search warrant before obtaining "cell site" information on the location of a suspect's mobile phone.

The full bench of the 4th U.S. Circuit Court of Appeals voted, 12-3, that investigators can get the information under the legal theory that it has been disclosed to third parties — in such instances, telephone companies.

"The Supreme Court may in the future limit, or even eliminate, the third-party doctrine. Congress may act to require a warrant for CSLI [cell site location information.] But without a change in controlling law, we cannot conclude that the Government violated the Fourth Amendment in this case," Judge Diana Motz wrote in the court's majority opinion.

Motz rejected claims from two defendants in an armed robbery case that the prosecution violated their rights by getting the cell data with a court order that does not require the level of proof needed for a search warrant: probable cause.

"Defendants’ preferred holding lacks support from all relevant authority and would place us in conflict with the Supreme Court and every other federal appellate court to consider the question," she wrote.

In an opinion amounting to a dissent, Judge James Wynn said cell-site data was different from data in earlier cases because there was little indication that it had been "voluntarily conveyed" to the phone company.

"There is no reason to think that a cell phone user is aware of his CSLI, or that he is conveying it. He does not write it down on a piece of paper, like the dollar amount on a deposit slip, or enter it into a device, as he does a phone number before placing a call. Nor does CSLI subsequently appear on a cell phone customer’s statement," Wynn wrote in an opinion joined by Judges Henry  Floyd and Stephanie Thacker.

Wynn also noted that while phone users usually know what number they're calling, they may be unaware of what cell-site they're using.

"Even if cell phone customers have a vague awareness that their location affects the number of 'bars” on their phone...they surely do not know which cell phone tower their call will be routed through, a fact even the government concedes," Wynn wrote, rejecting the majority's view that individuals don't have privacy interests in knowledge they don't possess.

"I suppose we can also expect no privacy in data transmitted by networked devices such as the 'Fitbit' bracelet, which 'can track the steps you take in a day, calories burned, and minutes asleep'; the 'Scanadu Scout,' which can 'measure your temperature, heart rate, and hemoglobin levels'; or the 'Mimo Baby Monitor "onesie" shirt,' which can 'monitor your baby's sleep habits, temperature, and breathing patterns,'" the judge added.

The defendants could seek review of the 4th Circuit decision in the Supreme Court. However, without a split in the circuits on the issue, the justices may be unwilling to take it up.

Josh Gerstein is a senior reporter for POLITICO.
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