Court Monitor

Big Brother Is Watching Your Cell Phone Calls

The full Eleventh Circuit, sitting en banc, upheld the power of government to obtain, without a search warrant, the locations of anyone's cell phone conversations. United States v. Davis, 2015 U.S. App. LEXIS 7385 (11th Cir. May 5, 2015). The Court declared that no American has any expectation of privacy in his whereabouts when he makes or receives a cell phone call.

This case involved armed robberies and, as the saying goes, bad facts can make bad law. The defendant robbed seven businesses in South Florida over a two-month period, and there was ample eyewitness testimony at trial to prove his guilt, for which he was sentenced to 1,941 months in prison (more than 161 years). The defendant was also a frequent user of his cell phone, having an average of 86 cell phone calls a day during the relevant time period.

At trial, the government introduced evidence of his approximate locations, based on his cell phone usage, at the time of the robberies. Every time someone makes or receives a cell phone call, a nearby cell phone tower processes that call and that location data is stored by a phone company. This evidence of the cell tower locations placed the defendant in proximity to nearly all of the victims at the time of the various crimes.

The government obtained this information without a warrant based on the Stored Communications Act (SCA), which requires phone companies to provide this upon a request approved by a magistrate judge. The SCA was enacted in 1986 with a promise of protecting privacy, and the law does forbid the turning over of this information to government in the absence of an ongoing criminal investigation and approval by a magistrate judge. But the SCA does not require a showing of "probable cause" or a search warrant, and thereby bypasses the protections of the Fourth Amendment.

Nearly a half-century ago, the Supreme Court established that the Fourth Amendment safeguards reasonable expectations of privacy in phone use, in Katz v. United States, 389 U.S. 347 (1967). In that decision the Court prohibited use of a recording device placed outside of a public phone booth. A warrant must be obtained by government before it can record phone calls.

But typically courts find there is not a reasonable expectation of privacy in information voluntarily given to third parties, such as banks. Government is thereby able to obtain that information without a person's consent, and without a warrant.

The nearly unanimous Eleventh Circuit held that cell phone location data is like information voluntarily provided to a third party, in which the cell phone user lacks any reasonable expectation of privacy. Accordingly, the Court decided, there is no Fourth Amendment protection against government access to this information without a warrant. All that the government need show in order to obtain this information is that there are "reasonable grounds to believe" that the location records are "relevant and material to an ongoing criminal investigation," the Eleventh Circuit held.

Fourth Amendment cases like this one are popular among Supreme Court Justices, who might decide to "grant cert." to resolve this issue.