The Eleventh Circuit Court of Appeals said no this week to tracking your movements using data from your cell phone without a warrant when it declared that this information is constitutionally protected.
As Wired reports, “The case, United States v. Davis , is important not only because it provides substantive and procedural protections against abuse of an increasingly common and highly invasive surveillance method. It also provides support for somethingChristopher Sprigman and I have said before — that the government’s other “metadata” collection programs are unconstitutional.
“The Davis decision, in effect, suggests that the U.S. government’s collection of all kinds of business records and transactional data — commonly called “metadata” — for law enforcement and national security purposes may also be unconstitutional.
Your phone sends signals to the nearest cell towers so that the communications network system knows where to route a call should one come in. Many providers collect and store the location of towers a customer connects to at the beginning and end of the call for billing purposes. FBI agents in Davis obtained these records without a search warrant and used them to place the defendant, Quartavious Davis, near the scene of a number of robberies.
The prosecution had argued that cell tracking without a warrant is constitutional per the 1979 case Smith v. Maryland. In that case, the Supreme Court said that phone users have no “reasonable expectation of privacy” in the phone numbers they dial, and therefore they aren’t protected under the Fourth Amendment. Key to the Smith case was the Court’s view that the suspect had knowingly disclosed the phone numbers to the phone company and therefore had no protection with regard to them. Additionally, Smith built on the 1976 case of United States v. Miller, which held that a person does not have Fourth Amendment rights in their bank records because they are the bank’s business records and not the customer’s private data. Together the cases are known as the “third-party doctrine,” which says that you have no Fourth Amendment interest in a third party’s business records because you have voluntarily disclosed information to the business and assumed the risk of that information being further disclosed to the government.
This third-party doctrine is what the NSA has used to justify its current warrantless bulk collection of phone call records — revealed in documents leaked by Edward Snowden — as well as its past collection of internet transactional information, and its suspected acquisition of financial information.
Challenges to the phone records bulk-collection program are currently wending their way through the federal courts. Last December, a District of Columbia judgeheld that the bulk collection of phone records violates the Fourth Amendment — regardless of Smith — and called the program “almost Orwellian.” Yet shortly thereafter a different district court judge relied on Smith to give the program his stamp of approval. This month, a third federal judge opined that the Supreme Court should overturn Smith v. Maryland — but until it does so, he was obligated to allow the calling records collection program to continue.