July 31, 2013, 3:00 AM — Warrants are not required by the U.S. government to access historical cell site information, an appeals court ruled in an order.
The Fourth Amendment to the U.S. Constitution protects only reasonable expectations of privacy, the U.S. Court of Appeals for the Fifth Circuit wrote in a 2-1 ruling on Tuesday. The Fourth Amendment protects against unreasonable searches and seizures.
"Because a cell phone user makes a choice to get a phone, to select a particular service provider, and to make a call, and because he knows that the call conveys cell site information, the provider retains this information, and the provider will turn it over to the police if they have a court order, he voluntarily conveys his cell site data each time he makes a call," the court added.
Cell site information is clearly a business record, collected by the service provider for its own business purposes, and without being asked to so by the government, the court said in the order.
The dispute hinged around whether law enforcement agents can access cell site data with a relatively easy-to-obtain order under section 2703 (d) of the Stored Communications Act, which is based on a showing of "specific and articulable facts," instead of using a search warrant after showing probable cause.
Rights groups American Civil Liberties Union and Electronic Frontier Foundation and others have argued that the government should be required to seek a warrant to access the location information, because it is sensitive and can reveal a great deal about a person. The groups argued in court that SCA grants courts the discretion to require the government to obtain a warrant based upon probable cause before accessing historical cell phone location data.
Ruling that compelled warrantless disclosure of cell site data violates the Fourth Amendment, a magistrate judge earlier denied a government request for the historical cell site data in three applications filed in October, 2010 under the SCA for seeking evidence relevant to three separate criminal investigations. The judge, however, allowed for providing subscriber information.
Following an appeal by the government, a district court held that data "disclosing the location of the telephone at the time of particular calls may be acquired only by a warrant issued on probable cause," as the records would show the date, time called, number, and location of the telephone when the call was made, which is constitutionally protected.
The Fifth Circuit court clarified that its ruling only covered section 2703(d) orders to obtain historical cell site information, and did not address, for example, orders requesting data from all phones that use a tower during a particular interval or "situations where the Government surreptitiously installs spyware on a target's phone or otherwise hijacks the phone's GPS, with or without the service provider's help."