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Court: Cops need warrants for cellphone location data

By Julian Hattem - 08/05/15

A federal court ruled on Wednesday that the government cannot obtain information about a cellphone's location without a warrant.

The split decision from the 4th Circuit Court of Appeals concluded that warrantless searches of cellphone data are unconstitutional, a victory for privacy advocates who have sought new protections for people's information.

"We conclude that the government's warrantless procurement of the [cell site location information] was an unreasonable search in violation of appellants' Fourth Amendment rights," Judge Andre Davis wrote on behalf of the majority of the three-judge panel.

"Examination of a person's historical [cell site location information] can enable the government to trace the movements of the cellphone and its user across public and private spaces and thereby discover the private activities and personal habits of the user," he added. "Cellphone users have an objectively reasonable expectation of privacy in this information."

Cellphone providers such as AT&T and Verizon keep records whenever cellphones exchange radio waves with a local tower. Phones typically are in touch with their nearest cell tower, so a person's movement can effectively be tracked by looking at which towers a phone communicates with.

Law enforcement officials relied in part on those types of records when they charged two men, Eric Jordan and Aaron Graham, in connection with a series of armed robberies in Baltimore five years ago. Police obtained court orders but not warrants to obtain location data about their phones covering a total of 221 days.

In doing so, they violated the Constitution, Davis said. But because the government relied "in good faith" on those court orders, the court declined to toss out the convictions.

Still, the decision is a boon for proponents of increasing privacy protections for people's cellphones and location information.

It also breaks from a decision earlier this year by the full 11th Circuit Court of Appeals, which ruled that people have no constitutional privacy protections on their cellphone location data. In its May decision, the 11th Circuit overturned a previous ruling from a three-judge panel on the court.

The American Civil Liberties Union has sought to take that case to the Supreme Court.

The split at the appeals court level could put pressure on the high court to take up the issue soon.

In a dissenting opinion, Judge Diana Gribbon Motz declared that constitutional protections for privacy do not apply to people's cellphone location data. That information is covered under the "third party doctrine," she said, which states that there are fewer privacy protections for information a person willingly hands over to a third party, such as cellphone location information.

"If the majority is proven right, it will only be because the Supreme Court revises its decades-old understanding of how the Fourth Amendment treats information voluntarily disclosed to third parties," she wrote. "Today the majority endeavors to beat the Supreme Court to the punch."

The law firm of Hallett, Zerillo, and Whipple, P.A. are Maine attorneys representing clients who have been seriously injured, accused of crimes in state and federal court, have business litigation needs or family law and divorce cases. Various attorneys in the firm have been locally and nationally recognized for their achievements, including admission into New England Super Lawyers, the Client's Choice Award from AVVO.com, and the President's Award from the Maine Association of Criminal Defense Lawyers. For more information on the firm, please visit www.HZWlaw.com.

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