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Quartavious Davis and five others were found guilty of robbery and racketeering, among other things, in 2011. The government used historical cell-site information to place Davis and the others close to the scenes of the robberies around the time they occurred.
Historical cell-site information consists of the records of which cell tower a phone was closest to at the time it made a call, along with the direction of the caller from the tower. This can be used to calculate a location for the caller.
A Reasonable Expectation of Privacy in Cell-Site Data?
Davis appealed his conviction to a three-judge panel of the Eleventh Circuit. In June, they found that Davis did have a reasonable expectation of privacy in the location data transmitted by his phone, meaning obtaining the data was a Fourth Amendment search that required a warrant. (The government had used only a court order, which required less than a showing of probable cause to obtain.)
On Friday, the Justice Department petitioned for a rehearing en banc, reported Orin Kerr at The Volokh Conspiracy. The issue is narrowly framed: If historical cell-site data carries with it a reasonable expectation of privacy, then the provision of the Stored Communications Act that allows obtaining that information on less than probable cause may be unconstitutional.
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This Is Not Quite the Same
If granted, the petition could push Fourth Amendment technology jurisprudence a teensy bit forward. In United States v. Jones, Justice Alito's concurring opinion suggested that electronically tracking someone for an extended period of time could be a search.
Davis's case, however, isn't quite analogous, and on re-hearing, the en banc panel could easily distinguish it. In Jones, the tracking was so onerous partly because it was happening in real time. In this case, the location tracking is happening after the fact; police are going back to old records of where the phone was at a particular time in order to calculate a location (unlike GPS, historical cell site triangulation doesn't just spit out the precise coordinates of the phone).
The Justice Department recognized this, and in its petition, emphasized the application of the third party doctrine because historical cell-site information is more like a business record than anything else.
The other reason for the Eleventh Circuit to reconsider is the existence of a circuit split. In 2013, the Fifth Circuit decided the other way; that is, there is no reasonable expectation of privacy in historical cell-site data. Because was an issue of first impression for the Eleventh Circuit -- as well as the rest of the country, more or less -- there's little doubt that the Eleventh Circuit would grant re-hearing, and then no matter who wins there, you'll see this before the Supreme Court next year.