Scope of government definition
Two federal appeals courts recently published significant opinions that redefine the scope of government access to phone records, setting the stage for a complex debate in Congress over the future of bulk data collection under the Patriot Act. The pair of decisions, along with the outcome of a legislative debate that has roiled Congress this month, will define the permissible boundaries for government surveillance and contribute to the ongoing debate over government access to digital information in all forms. We summarize both decisions as well as the congressional debate below.
11th Circuit Upholds Warrantless Collection of Cell Phone Location Data
On May 5, the 11th U.S. Circuit Court of Appeals held that law enforcement agencies may obtain historical cell phone location records from wireless carriers without obtaining a warrant. The ruling is the latest of several to interpret the scope of the Fourth Amendment protection against unreasonable searches and seizures in the digital age. In June 2014, the U.S. Supreme Court held that police must almost always obtain a warrant before searching the digital contents of a cell phone seized from suspects upon arrest. With last week’s ruling, the 11th Circuit interpreted location data to fall outside the scope of the Supreme Court’s refined warrant requirement, possibly setting the stage for further review by the court.
In the 9-2 ruling, the en banc panel rested on two rationales to reach its result. First, the court held that cell phone location data were business records owned by the service provider, MetroPCS. Although the records contained information about both the location of the cell towers used to make calls and the quadrant from which a call was placed, the records themselves were “created by MetroPCS, stored on its own premises, and subject to its control.” Because these records do not belong to individual cell phone users, they are not the individual’s to withhold.
Second, the court held that individual cell phone users do not have a reasonable expectation of privacy with regard to historical cell phone location records. When placing a call, a cell user is aware that he or she transmits location information to the towers, and in doing so voluntarily shares that information. Absent a reasonable expectation of privacy, police may obtain these records directly from providers with a court order authorized by the Stored Communications Act.
The implications of this ruling are uncertain but potentially wide-ranging. Privacy advocates argue that the same interpretation could be applied to allow the government to access other types of sensitive data held by third parties, such as email and data stored by cloud service providers. Meanwhile, the ruling appears to push against trends in several states, including Montana, Maine, and Minnesota, which have all recently passed laws requiring police to obtain warrants before searching cell phone location data.