Academic journal article Harvard Law Review

Fourth Amendment - Third-Party Doctrine - Fourth Circuit Holds That Government Acquisition of Historical Cell-Site Location Information Is Not a Search

Academic journal article Harvard Law Review

Fourth Amendment - Third-Party Doctrine - Fourth Circuit Holds That Government Acquisition of Historical Cell-Site Location Information Is Not a Search

Article excerpt

FOURTH AMEND MENT--THIRD-PARTY DOCTRINE--FOURTH CIRCUIT HOLDS THAT GOVERNMENT ACQUISITION OF HISTORICAL CELL-SITE LOCATION INFORMATION IS NOT A SEARCH.--United States v. Graham, 824 F.3d 421 (4th Cir. 2016) (en banc).

The Supreme Court has held that people cannot reasonably expect privacy in information they willingly disclose to third parties and, thus, that government intrusions on such information are not Fourth Amendment searches. (1) Lower courts have also held that historical cell-site location information (CSLI)--a carrier's records of the cell tower used to route a user's calls and messages (typically the tower closest to the user) (2)--is such information willingly disclosed to third parties. (3) Recently, in United States v. Graham, (4) the Fourth Circuit upheld that rule, finding that two defendants could not reasonably expect privacy in CSLI that police used to place them at the crime scene. That holding shows the third-party doctrine's flaw: in its focus on categorizing behavior, it does not accurately estimate what society today would consider reasonable. Courts should update the doctrine to reflect our complex and changing relationship with technology.

Aaron Graham and Eric Jordan were prosecuted for six armed robberies in Baltimore that occurred over the course of several weeks in early 2011. (5) The fifth and sixth robberies took place on the same afternoon. Based on eyewitness testimony, the police arrested Graham and Jordan; they then acquired physical evidence connecting the defendants to two of the earlier robberies. (6) While investigating those robberies, an officer seized (under warrant) two phones from Graham's car, linking them to the phone numbers Graham and Jordan gave at arrest. (7) The police sought court orders through the Stored Communications Act (8) (SCA), under which the government may compel disclosure of certain records under a standard lower than probable cause. (9) They demanded that Sprint/Nextel (the defendants' phone carrier) provide the historical CSLI associated with the defendants' phones for a total of 221 days over seven months, collecting over 28,000 CSLI data points for each defendant. (10) Prosecutors used CSLI to place the defendants at most of the crime scenes. (11)

Graham and Jordan brought a motion to suppress the CSLI as the fruit of an unconstitutional search. (12) The district court concluded that the defendants could not legitimately expect privacy in their historical CSLI records as they voluntarily conveyed that information to Sprint/Nextel; the third-party doctrine thus applied. (13) In the alternative, the court held that because the government had relied on the SCA orders in good faith, it could use the CSLI without triggering the exclusionary rule. (14) Accordingly, the court rejected the motion, and the defendants were then convicted following a jury trial. They appealed, arguing that the government, by obtaining the CSLI, had violated their Fourth Amendment rights. (15)

A panel of the Fourth Circuit agreed. Writing for the panel, Senior Judge Davis (16) held that the government invades an individual's reasonable expectation of privacy (and thus conducts a Fourth Amendment search) when it examines historical CSLI for an extended period of time. (17) Judge Davis rejected the government's claim that the carrier's privacy policy showed that the defendants did not expect privacy in their CSLI, as the policy said that the company collects, rather than discloses, information; users also rarely read those policies. (18) He next held that the third-party doctrine cannot apply to CSLI. (19) Users, he wrote, do not voluntarily convey location information to phone carriers. (20) Judge Davis also rejected the argument that CSLI is noncontent, or merely the information necessary to get content from point A to B, (21) which has traditionally merited less Fourth Amendment protection. (22) CSLI is more than the basic routing information that has been deemed digital noncontent; rather, it connects location to time. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.