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En Banc Panel Says No Privacy Right in Historical Cell Site Data

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By Mark Wilson, Esq. on May 06, 2015 3:55 PM

After a three-judge panel of the Eleventh Circuit ruled that there was a Fourth Amendment right to privacy in historical cell site data, the government requested and was granted an en banc rehearing.

Yesterday, the en banc court reversed the panel and found that there is no constitutional right to privacy in historical location information because cell phone location information is voluntarily conveyed to a third party -- the phone company.

The Pesky Third Party Doctrine

The government obtained a subpoena, pursuant to the Stored Communications Act, in order to get location records for Quartavius Davis's cell phone. The government used these records to argue that Davis's phone made calls close to the locations of several robberies that occurred in Florida in 2010.

Davis claimed that he had a right to privacy in the historical data, meaning that the government should have used a warrant, not merely a subpoena, to get the records.

The Eleventh Circuit's en banc panel, however, didn't buy the argument that historical location information is as pressing a privacy concern as, say, a GPS tracking device. "In the controversy before us, there is no GPS device, no physical trespass, and no real-time or prospective cell tower location information," the court said, agreeing with the government's argument that neither the majority opinion nor Justice Alito's concurring opinion in United States v. Jones is controlling here.

Instead, the court said, historical cell site data is a business record voluntarily conveyed to a third party -- yes, it's the third party doctrine.

In Smith v. Maryland, it was telephone numbers. The new hotness is cell site data, the record of which cell phone tower a phone connected to when a call was placed. As in Smith, the court emphasized that the government never obtained the contents of Davis's phone calls, only the numbers dialed, the duration, and which tower the phone connected to when it made the call.

Surprisingly, the court acknowledged Davis's public policy argument that the government can too easily collect cell phone information from providers, but then reminded us who's in charge of writing laws: "Davis and amici advance thoughtful arguments for changing the underlying and prevailing law; but these proposals should be directed to Congress and the state legislatures rather than to the federal courts," the court said.

A Nice Idea, Except for That Tricky Congress Thing

After three separate concurring opinions, two judges dissented, calling the majority's opinion "an expansive application of the third-party doctrine [that] would allow the government warrantless access not only to where we are at any given time, but also to whom we send e-mails, our search-engine histories, our online dating and shopping records, and by logical extension, our entire online personas."

The dissent is a spirited pro-privacy public policy analysis, but as the majority insisted, the law's the law, whether or not you like it and whether or not it's a good idea.

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