Is a warrant required for law enforcement to obtain location data, which indicates where the user has been, from a cell phone? The Fourth Circuit Court of Appeals and the U.S. District Court for the Northern District of California recently ruled Yes. Yet, despite the remarkable similarities in the decisions by courts separated by almost three thousand miles, the issue is likely to end up in the Supreme Court, adding to the growing body of law in the wake of the Court’s decision in Riley v. California that warrantless searches of cell phones violate the Fourth Amendment.
Riley’s prose was sufficiently elastic with regard to technological innovation that law enforcement agencies in Virginia and California in the recent cases argued is not a reasonable expectation of privacy in location data. Because mobile phones search for cell towers in order to connect to the mobile services provider, it was argued that there is no longer an expectation of privacy in location data because the user has already voluntarily disclosed that information simply by turning their phone on.
While there is a body of law that states there is no expectation of privacy in publicly disclosed data, the Fourth Circuit in United States of America v. Graham dismissed the argument, with Judge Andre Davis noting, that “Cell phone use is not only ubiquitous in our society today but, at least for an increasing portion of our society, it has become essential to full cultural and economic participation.” “We cannot accept the proposition,” he continued, “that cell phone users volunteer to convey their location information simply by choosing to activate and use their cell phones and to carry the devices on their person.” In a remarkably similar conclusion Judge Lucy Koh, in the Northern District of California, wrote in In Re: Application For Telephone Information Needed for a Criminal Investigation, “Cell phone users do not expect that law enforcement will be able to track their movements 24/7 for a sixty-day period simply because the users keep their cell phones turned on.”
The law on mobile devices continues to evolve but many courts may adopt the Fourth Circuit’s view that, “As the march of technological progress continues to advance upon our zone of privacy, each step forward should be met with considered judgment that errs on the side of protecting privacy and accounts for the practical realities of modern life.”
For more information on privacy and security regarding mobile phone location and data, please contact Kenneth N. Rashbaum.