In a decision that could have broad implications for law enforcement searches in the digital age, a federal appeals court ruled Wednesday afternoon that officials must get a search warrant to review someone’s historical cell phone location data.
The Fourth Circuit Court of Appeals, in Virginia, overturned a previous ruling that investigators only needed a court order (and its lower standard of evidence) to use cell phone location data. Today’s ruling conflicts with decisions by other appeals courts, and will likely lead to a Supreme Court case on the issue.
“We conclude that the government’s warrantless procurement of the [cell phone location data] was an unreasonable search in violation of Appellants’ Fourth Amendment rights,” Judge Andre Davis wrote in the decision. “Even as technology evolves, protections against government intrusion should remain consistent with those privacy expectations society deems reasonable.”
The government’s argument was that by using a cell phone, you’re letting the phone company know where you are and therefore you’ve given up your right to privacy over those details. Thus, that location data is no longer under the protection of the Fourth Amendment, which bars warrantless searches. The appeals court rejected this reasoning.
But this isn’t just about cell phones—officials use the same argument, known as the “third party doctrine,” to justify searching emails, social media records, and other internet data without a full search warrant. They instead use the 1986 Stored Communications Act, which allows officials to demand data from service providers with a court order based on “reasonable grounds” for believing it could lead to an arrest, instead of the higher “probable cause” standard defined by the Fourth Amendment.
“It’s an extremely frequent tactic for law enforcement now to go to a phone company and request somebody’s historical cell phone location records,” Nate Wessler, a lawyer with the ACLU, told Fusion. “The question the Supreme Court will now have to answer is how we will maintain the vitality of the Fourth Amendment in the digital age.”
The ruling came from a Baltimore case in which two men, Aaron Graham and Eric Jordan, were convicted for six armed robberies in 2010 and 2011. Investigators used their cell phone location data—obtained from the cell phone company with a court order under the Stored Communications Act—from more than seven months of activity to link them to the crimes.
There were no eye witnesses tying Graham and Jordan to several of the robberies, so their prosecution hinged on the cell phone data. Today’s ruling, however, did not overturn their conviction, with the court saying that the government acted “in good faith” on its court order.
Judges on the Eleventh and Fifth Circuit Appeals Courts have come to opposite conclusions in the last two years, ruling that the government did not need a search warrant to review data from a phone company. The fact that separate appeals courts have issued contradictory rulings makes a Supreme Court case highly likely.
In recent months, there have been more cases of law enforcement officials using social media and data from Twitter, Spotify, or Netflix records to make arrests. On the whole, we’ve seen an increase in “very private records that in the digital age we can’t help but give companies,” Wessler said. “This kind of private information…deserves the full protection of the Fourth Amendment.”