Privacy SOS

ACLU petitions Supreme Court to decide whether cops can track our phones without warrants

Do the police need to get a warrant before obtaining large quantities of information from our cell phone providers, showing where we’ve been and when? It depends on where you live. If the Supreme Court decides to hear the ACLU’s petition in Davis v. United States, the rule might become consistent nationwide.

Attorney Nate Wessler provides the background:

The ACLU, working with attorneys in Florida, has asked the [Supreme Court] to take up Davis v. United States, a case involving warrantless government access to a large volume of cell phone location information. At stake is the continuing vitality of the Fourth Amendment.

After suspecting Quartavius Davis of participating in robberies in the Miami area in 2010, a federal prosecutor obtained 67 days’ worth of Davis’ cell phone location records from his cellular service provider with a simple court order – but without a warrant based on probable cause, as is required under the Fourth Amendment. The records turned out to contain a staggering 11,606 separate location points showing where he was at the start and end of calls — an average of one location point every five-and-a-half minutes, assuming Mr. Davis slept an average of eight hours a night.

Initially, a three-judge panel of the Eleventh Circuit Court of Appeals agreed with the ACLU, holding that the historical cell site location information was protected by the Fourth Amendment. But the government appealed that decision, and the full panel of judges in the Eleventh Circuit reversed, holding that the Third Party Doctrine exempts information like cell site location data from constitutional protection. 

The Third Party Doctrine, established in the 1970s, says that when we give telecommunications companies or banks certain information, such as the phone numbers we dial or the shops we make purchases at, we lose the right to defend that information against government seizure. Under the obsolete legal doctrine, the government can obtain all kinds of information without asking us, and without getting a warrant. But the Third Party Doctrine is showing some signs of distress.

Here in Massachusetts, for example, the state’s high court ruled in Commonwealth v. Augustine that the Third Party Doctrine doesn’t apply to cell site location information. After all, when we make calls with our cell phones, we aren’t intentionally sharing our location information with companies; the information is transmitted automatically, and must be in order for the service to work. Carving out a location tracking sized hole in the Third Party Doctrine, then, the Supreme Judicial Court held that the cops are required to obtain a warrant if they want to access these historical records.

But not all courts have agreed, including the Eleventh Circuit. If the Supreme Court accepts the ACLU’s petition to hear Davis, we might finally have a nationwide, blanket answer to a very basic question: do the cops have to get a warrant before tracking us through our phones?

UPDATE (6/5/17): The Supreme Court has agreed to hear a separate ACLU location tracking case, Carpenter. In that case, law enforcement obtained several months of Timothy Carpenter’s cell site location information without a warrant. The Sixth Circuit Court of Appeals held the search was constitutional; the ACLU appealed. The Supreme Court will now decide the issue.

© 2021 ACLU of Massachusetts.