Summer Of The 4th Amendment: Appeals Court Says Mobile Phone Location Is Protected Under 4th Amendment

from the secure-in-their-persons,-houses,-papers,-and-effects dept

Wed, Aug 5th 2015 12:55pm — Mike Masnick

It appears that the 4th Amendment is up for a bit of a revival this summer. Last week, we wrote about an important ruling in a Northern California district court saying that mobile phone location info -- officially known as "Cell Site Location Info" or "CSLI" -- was protected by the 4th Amendment, meaning the government couldn't scoop it up without a warrant. The ruling was excellent and detailed, but we noted there would be inevitable appeals.

Now, in a similar case that had already been decided the other way, the 4th Circuit appeals court has overturned that ruling and agreed that mobile phone location info requires a warrant. This is another big victory for the 4th Amendment.

Appellants Aaron Graham and Eric Jordan appeal their convictions for several offenses arising from a series of armed robberies. Specifically, Appellants challenge the district court’s admission of testimonial and documentary evidence relating to cell site location information (“CSLI”) recorded by their cell phone service provider. We conclude that the government’s warrantless procurement of the CSLI was an unreasonable search in violation of Appellants’ Fourth Amendment rights.

Unfortunately, the court says that it doesn't matter in this case because of the "good faith" exception. We've discussed in the past the problems of the "good faith exception," which basically says it's okay to violate the 4th Amendment so long as law enforcement doesn't know it's violating the 4th Amendment. From a basic rights perspective, that seems ridiculous. But, at the very least, this ruling still should make it clear that going forward a warrant is necessary.

The appeals court ruling goes pretty much along the lines you'd expect, pointing out that there's an expectation of privacy in the CSLI and therefore a warrant is needed. It rejects the government's assertion that Sprint/Nextel's privacy policy was agreed to by the defendants and thus waived any privacy expectation.

As an initial matter, we are not persuaded that, as the district court stated, Sprint/Nextel’s privacy policy disproves Appellants’ claim that they had an actual expectation in the privacy of their location and movements. The privacy policy in effect at the time Sprint/Nextel disclosed CSLI to the government stated as follows:
Information we collect when we provide you with Services includes when your wireless device is turned on, how your device is functioning, device signal strength, where it is located, what device you are using, what you have purchased with your device, how you are using it, and what sites you visit.
... First, the policy only states that Sprint/Nextel collects information about the phone’s location – not that it discloses this information to the government or anyone else.

Second, studies have shown that users of electronic communications services often do not read or understand their providers’ privacy policies.3 There is no evidence that Appellants here read or understood the Sprint/Nextel policy.

The court relies on a series of relatively recent Supreme Court decisions to make it clear that the 4th Amendment applies in this case:

Taken together, Karo, Kyllo, and the views expressed in Riley and the Jones concurrences support our conclusion that the government invades a reasonable expectation of privacy when it relies upon technology not in general use to discover the movements of an individual over an extended period of time. Cell phone tracking through inspection of CSLI is one such technology. It is possible that the CSLI for a particular cell phone is not very revealing at all because, for instance, the phone has been turned off or it has made few or no connections to the cellular network. But the government cannot know in advance of obtaining this information how revealing it will be or whether it will detail the cell phone user’s movements in private spaces.... We hold, therefore, that the government engages in a Fourth Amendment search when it seeks to examine historical CSLI pertaining to an extended time period like 14 or 221 days.

It's a good ruling and it looks like the courts are building up a series of rulings on this issue that will inevitably reach the Supreme Court in the near future...

Graham ca4 20150805 (PDF)Graham ca4 20150805 (Text)

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Filed Under: 4th amendment, 4th circuit, csli, expectation of privacy, location info, mobile phones

22 Comments

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Mason Wheeler (profile), 5 Aug 2015 @ 1:04pm

Second, studies have shown that users of electronic communications services often do not read or understand their providers’ privacy policies. There is no evidence that Appellants here read or understood the Sprint/Nextel policy.

Now that is a very interesting thing to see showing up in a court's ruling, especially as a matter of precedent. Imagine the implications for EULAs!
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Almost Anonymous (profile), 5 Aug 2015 @ 1:09pm

Time to celebrate!
Yay, another good ruling for Americans and privacy that will be roundly ignored by law enforcement!
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Anonymous Coward, 5 Aug 2015 @ 1:21pm

Re:
@MasonWheeler re EULA: unfortunately "ignorance of the law" will still be a valid enforceable concept for some time to come. I too would welcome any court's declaration of unenforceability for these.
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David, 5 Aug 2015 @ 1:23pm

And another puzzle piece falls into place:
Unfortunately, the court says that it doesn't matter in this case because of the "good faith" exception. We've discussed in the past the problems of the "good faith exception," which basically says it's okay to violate the 4th Amendment so long as law enforcement doesn't know it's violating the 4th Amendment.

Now doesn't that perfectly explain why applicants with average intelligence and above are disqualified from entering police service? They would be near useless in the field for current-day police work since they could not convincingly claim not to recognize all the laws they were breaking.
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Anonymous Coward, 5 Aug 2015 @ 1:30pm

"The court relies on a series of relatively recent Supreme Court decisions to make it clear that the 4th Amendment applies in this case:"

Maybe they should just refer to the constitution in the future. Seems pretty clear.
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Mason Wheeler (profile), 5 Aug 2015 @ 1:36pm

Re: Re:
Sure... except that a EULA isn't a law; it's a "contract," and I say that in scare quotes because it lacks one of the most essential features of a genuine contract: a genuine contract is a bilateral affair, negotiated between two parties.
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icarusthecow (profile), 5 Aug 2015 @ 1:41pm

"First, the policy only states that Sprint/Nextel collects information about the phone’s location – not that it discloses this information to the government or anyone else."

Nice to see a court that doesn't buy into the bogus "Third party doctrine" and realizes sharing information with a company/provider shouldn't take away an individuals expectation of privacy.
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David, 5 Aug 2015 @ 1:54pm

Re:
Nice to see a court that doesn't buy into the bogus "Third party doctrine" and realizes sharing information with a company/provider shouldn't take away an individuals expectation of privacy.

I am not "sharing" my location information with a phone company any more than I am "sharing" money with a bank when I am paying into my account. This is not a gratuitous act but rather an integral part of performing a transaction.
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Matt, 5 Aug 2015 @ 2:01pm

I wonder what this will mean for Stingray devices.
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Anonymous Coward, 5 Aug 2015 @ 2:06pm

Unfortunately, the court says that it doesn't matter in this case because of the "good faith" exception.

If police get a good faith exception to explain away their ignorance of the law, why don't I? After all, knowledge of the law is not explicitly a part of "my" job description.
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Anonymous Coward, 5 Aug 2015 @ 2:56pm

>There is no evidence that Appellants here read or understood the Sprint/Nextel policy.

Huh? So this is saying that contracts that people agreed to are not binding because people are ignorant of them? That's a disturbing precedent.
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Anonymous Coward, 5 Aug 2015 @ 2:58pm

Re: Re: Re:
>genuine contract:
Is this a term of art? If not, arbitrary definitions don't help understand legal proceedings.
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Anonymous Coward, 5 Aug 2015 @ 2:59pm

Re:
The constitution is meaningless without judicial review.
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Anonymous Coward, 5 Aug 2015 @ 3:35pm

Re:
"Huh? So this is saying that contracts that people agreed to are not binding because people are ignorant of them? That's a disturbing precedent."

Except it's not precedent, but rather long accepted.
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Anonymous Coward, 5 Aug 2015 @ 6:31pm

I think it is obvious that the 4th Circuit Court of Appeals is biased in favor of the number 4.
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Anonymous Coward, 5 Aug 2015 @ 6:49pm

Re: Re:
Judging, the new incumbent industry.
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Craig, 5 Aug 2015 @ 10:03pm

Re: Time to celebrate!
BUT, if they are reminded of the law, even by a suspect, they can not claim ignorance can they? LOL.
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Anonymous Coward, 5 Aug 2015 @ 10:03pm

Re:
"If police get a good faith exception to explain away their ignorance of the law, why don't I?"

Because you're not helping the government suppress the population.
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Lisboeta, 6 Aug 2015 @ 6:25am

Re: Re:
You now are "sharing" your bank deposits. Have you not heard of "bail-in"?
http://www.huffingtonpost.com/ellen-brown/new-g20-bailin-rules-now-_b_6244394.html
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Anonymous Coward, 6 Aug 2015 @ 8:01am

This assumes that the 4th amendment right will be respected and not just conveniently forgotten about by those that frequently abuse their power in regards to warrants for such things.
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I am US Citizen, 6 Aug 2015 @ 8:53am

We The People
We've discussed in the past the problems of the "good faith exception," which basically says it's okay to violate the 4th Amendment so long as law enforcement doesn't know it's violating the 4th Amendment.

That's definitely a double standard. No LE gives someone a break, nor does any court allow for ignorance of the laws. Preposterous.
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Pensickle Poboy, 6 Aug 2015 @ 9:11am

Re: We The People
it's okay to violate the 4th Amendment so long as law enforcement doesn't know it's violating the 4th Amendment.

The court system would be feeding on itself to not allow LE these types of exceptions.

Its not about justice anymore.
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