Federal court of appeals rules warrantless collection of cellphone location data constitutional
Court rules warrantless collection of cellphone location
data constitutional
A federal court of appeals rejected a constitutional
challenge from two convicted robbers making it more likely that the US supreme
court will consider the issue
Ryan Felton in Detroit
Thursday 14 April 2016 07.00 EDT Last modified on
Thursday 14 April 2016 10.58 EDT
A federal appellate panel on Wednesday rejected a
constitutional challenge to warrantless collection of cellphone location
records, increasing the potential for the US supreme court to consider the
legality of the practice.
In a 22-page opinion issued by the sixth circuit court of
appeals, the judges said the FBI’s collection of records from wireless carriers
for phone numbers connected to two Detroit men was constitutional.
Timothy Carpenter and Timothy Sanders, who were convicted
for their role in a string of cellphone store robberies, argued the practice
was a constitutional violation under the fourth amendment. A brief filed by the
American Civil Liberties Union noted that the location tracking in this case
reveals the “extraordinary private details” police can obtain via location
tracking, including where the defendants may worship and who they may be
sleeping with.
The appellate panel disagreed in the ruling, saying the
pair had “no expectation of privacy” for location information. The judges added
the records are unprotected, as they “say nothing about the content of any
calls”.
In early 2011, law enforcement officials arrested four
men suspected in a string of armed robberies around metro Detroit. One of the
men confessed to multiple robberies and proceeded to cooperate with the FBI,
handing over his phone number, as well as 16 others linked to other possible
suspects. Investigators then sought orders to obtain records for “cell site
information” for the phone numbers on incoming and outgoing calls over several
months, the opinion said.
The judges granted the orders. The ACLU found
investigators obtained records that included nearly 13,000 separate location
points for Carpenter, and more than 23,000 for Sanders, which they calculated
was an average of one every six minutes.
As a result, Carpenter and Sanders were charged with
aiding and abetting multiple robberies. The pair’s motion to suppress the cell
location data, contending that a warrant with probable cause was required to
obtain the records, was denied by the lower court. The opinion said that
Carpenter was described in court as the organizer of several robberies, where
Sanders “had served as lookout”.
The court reasoned that the defendants do not have a
reasonable expectation of privacy in “third-party” data such as that from a
cellphone carrier. The judges also distinguished between the content of
communications such as emails and location information.
”[T]he cell-site data – like mailing addresses, phone
numbers, and IP addresses – are information that facilitate personal
communications, rather than part of the content of those communications
themselves,” the ruling stated.
ACLU attorney Nate Wessler disagreed.
“When we did our own analysis of this location records …
we were able to tell things like when the defendant spent the night at home and
spent the night at a different neighborhood,” Wessler said. “These records when
they’re aggregated can be very sensitive and it’s very important that our
understanding of the fourth amendment keeps pace with the advancing
technology.”
Judge Jane Stranch joined the majority opinion but took
issue with the “sheer quantity of sensitive information procured without a
warrant,” which “raises fourth amendment concerns”. Stranch also said there was
a need to develop a new test to determine when a warrant is needed to obtain
similar records.
“The runaway pace of technological development makes this
task more difficult,” she said. “But the job is ours nonetheless and the
circumstances before us lead me to believe that we have more work to do to
determine the best method.”
The ruling is consistent with separate regional appeals
courts, but conflicts with an August ruling by the fourth circuit court of
appeals, which found that: “Even as technology evolves, protections against
government intrusion should remain consistent with those privacy expectations
society deems reasonable.”
Wessler said he believes the conflicting opinions suggest
“more courts certainly will be taking up this question at the appellate panel”.
“And perhaps the supreme court will have to weigh in
eventually to set a consistent standard across the country,” he said.
The US attorney’s office in Detroit, which prosecuted the
case, declined to comment.
Carpenter’s attorney, Harold Gurewitz, said his client
may ask the sixth circuit to rehear the case or petition the supreme court for
consideration.
“It concerns an issue that I think is important,” he
said, “one that’s been raised in other courts across the country, both state
and federal, so it is important and we’re going to look at it real quickly.”
Gurewitz said the supreme court needs to step in to resolve the issue at some
point.
“Technology has moved forward at a speed that has
continued to increase,” he said. “And I think it’s time to give the [supreme]
court an opportunity to talk about how the law ought to address these …
issues.”
Sanders was already serving a 30-year sentence for
murder, and received an additional 14 years for his role in two robberies.
Carpenter was sentenced to over 116 years in prison, which the court also found
to be legal.
“Carpenter has a long criminal history,” the opinion
said. “In this case, as the district court observed, Carpenter organized and
led several ‘very violent’ robberies that put his victims ‘in extreme danger’.”
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