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Case Involving Cell-Phone Location Data to Get En Banc Rehearing

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By William Peacock, Esq. on September 05, 2014 10:47 AM

Cell phone location data: Every time your phone pings the nearest tower, there is a record. Ever see a movie where they track a person using their cell phone? This is that, and no GPS chip is required. Sure, it's not as accurate, but it does say the defendant was in the general area of the crime.

That's what happened to Quartavious Davis. The government used a court order under the Stored Communications Act to get his cell-phone records, which requires a lower showing than probable cause under the Fourth Amendment.

The Eleventh Circuit held that Davis had a reasonable expectation of privacy in his location data, but will now give the case a second look with the full en banc treatment.

Privacy Interest in Location Data

The Eleventh Circuit, in a muddled opinion, held that individuals have a privacy interest in location data:

"[E]ven on a person's first visit to a gynecologist, a psychiatrist, a bookie, or a priest, one may assume that the visit is private if it was not conducted in a public way. One's cell phone, unlike an automobile, can accompany its owner anywhere. Thus, the exposure of the cell site location information can convert what would otherwise be a private event into a public one."

The panel relied upon a four-judge concurrence in United States v. Jones, a 2012 case in which the U.S. Supreme Court held that continuous GPS monitoring of a car could eventually become a search, when enough data points eventually build up to become a mosaic of one's life.

My colleague points out that in the government's petition, they argued that the "mosaic theory" is distinguishable, as in Jones, the GPS tracking happened in real-time (device to cops), while here, the data is transferred to a company and isn't even actual location data -- it's a list of towers that the phone connects to that can be used to approximate locations.

We'll see if that's enough of a distinction to persuade the en banc court, or if the looming circuit split does.

Circuit Split

In 2013, the Fifth Circuit held that warrantless requests by the government were perfectly acceptable under the "third-party doctrine." (Dude voluntarily transmits his location data to the cell phone company. They are a third party. No expectation of privacy.)

The Eleventh Circuit's pro-privacy ruling created a split with the Fifth Circuit which, if it holds up, could be fodder for a future Supreme Court case.

Where's Davis?

In case you were wondering what happened to the defendant, he may be making history from a prison cell. Despite the Eleventh Circuit's holding, his sentence was upheld under a good faith doctrine. Something tells us that he couldn't care less about what happens to the appeal and the Fourth Amendment.

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