Court: warrantless cellphone tracking NOT illegal search
May 5, 1:45 PM EDT
Court: warrantless cellphone tracking not illegal search
By CURT ANDERSON
AP Legal Affairs Writer
MIAMI (AP) -- Investigators do not need a search warrant
to obtain cellphone tower location records in criminal prosecutions, a federal
appeals court ruled Tuesday in a closely-watched case involving the rules for
changing technology.
The Atlanta-based 11th U.S. Circuit Court of Appeals,
overturning a three-judge panel of the same court, concluded that authorities
properly got 67 days' worth of records from MetroPCS for Miami robbery suspect
Quartavious Davis using a court order with a lower burden of proof.
In its 9-2 decision, the 11th Circuit decided Davis had
no expectation of privacy regarding historical records establishing his
location near certain cellphone towers. The records were key evidence used to
convict Davis of a string of armed robberies, leading to a 162-year prison
sentence.
In fact, Circuit Judge Frank M. Hull wrote for the
majority, it's clear that cellphone users in today's society understand how
companies collect data about calls and that cell towers are a key part of that.
"We find no reason to conclude that cellphone users
lack facts about the functions of cell towers or about telephone providers'
recording cell tower usage," Hull wrote. "This cell tower method of
call connecting does not require a different constitutional result just because
the telephone company has decided to automate wirelessly."
Two judges dissented, contending the Fourth Amendment
requires probable cause and a search warrant for such records and some judges
in the majority agreed in separate opinions that the U.S. Supreme Court should
make the ultimate decision. Davis attorney David O. Markus said the dissent
could provide a "roadmap" for a likely appeal to the high court.
"Unfortunately, the majority is stuck in the early
`80s when cell-phones were the size of bricks and cost $3,000. The cases from
that long-ago era aren't helpful in today's world," Markus said.
Markus called the decision "breathtaking,"
contending it could mean government investigators could have access without a
search warrant to all kinds of personal data stored by a third party such as
Facebook posts, purchases on Amazon and even pictures in "cloud"
storage.
The Miami case has drawn wide interest from civil
liberties groups and others, with briefs in support of the search warrant
requirement filed by the ACLU, the Reporters Committee for Freedom of the
Press, the National Association of Criminal Defense Lawyers and many others.
"The majority opinion fails to appreciate the
necessity of protecting our privacy in the digital age," said Nathan Freed
Wessler, staff attorney at the Speech, Privacy and Technology Project of the
American Civil Liberties Union.
The 11th Circuit, however, said existing law regarding
information possessed by third parties clearly governs the Davis cellphone
tracking data. Those who want the law changed should look to Congress and the
state legislatures, not the judicial system, the judges said.
The decision Tuesday is similar to an earlier ruling by
the 5th U.S. Circuit Court of Appeals, while the 3rd Circuit has ruled a search
warrant may be required for cell tower records if privacy rights might be
affected. Federal appeals courts are also considering cases from Maryland and
Michigan.
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Follow Curt Anderson on Twitter: http://twitter.com/Miamicurt
© 2015 The Associated Press. All rights reserved.
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