17 June 14 by Jennifer Granick
wired
The Eleventh Circuit Court of Appeals said no this week to
tracking your movements using data from your mobile phone without a
warrant when it declared that this information is constitutionally
protected.
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 something Christopher Sprigman and I
have said before -- that the US government's other "metadata"
collection programs are unconstitutional.
The Davis decision, in effect, suggests that the US
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 mobile phone 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 phone 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 US government.
Challenges to the phone records bulk-collection program are currently wending their way through the federal courts. Last December, a District of Columbia judge held 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.
Great privacy news for everyone
The Eleventh Circuit federal appellate court has rejected the idea, however, that Smith and Miller allow warrantless acquisition of business records that reveal intimate matters. Instead, the court looked to a more recent Supreme Court case -- United States v. Jones (2012) -- which held that attaching a GPS-tracking device to a vehicle and using the device to monitor the car's movements was a trespass that violated the Fourth Amendment because it interfered with the defendant's property interest in the car. In concurring opinions, Justice Sonia Sotomayor and four other justices added that the GPS surveillance "impinge[d] on expectations of privacy" because it allowed authorities to monitor every place a suspect traveled and infer many things about a suspect's private life based on that information.
Relying on the Jones concurrences, the Eleventh Circuit concluded that under the "reasonable expectation of privacy" test, mobile phone location data is also protected under the Fourth Amendment, since this data can reveal private matters such as "being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute". The appellate judges also dismissed the argument used in Smith that people lose their right to data submitted to businesses, rejecting the idea that people know in any meaningful way that in using their phone they are sending their location information to a provider.
The appellate judges in Davis, by refusing to apply Smith and Miller to a case involving stored records, have taken a giant step toward undermining the legal justification propping up many of the US government's targeted and bulk metadata collection practices. The call detail records that the NSA gets under its Section 215 collection program -- which provide information about phone numbers called and received and the duration of calls -- include far more detailed data than the simple information at issue in Smith and are far more revealing of private conduct, social networks, and thought processes. This is especially true because the records are collected in bulk.
In Jones, Justice Sotomayor opined that it may be time to rethink the third-party doctrine. The Eleventh Circuit has taken a step in that direction, writing an appellate-level opinion that rejects the extension of those 1970s-era cases to modern communication networks and data. This is great privacy news for anyone who uses a mobile phone. But it's also a trembler suggesting that when appellate courts finally get hold of the NSA's bulk metadata collection programs, these programs may very well be knocked down.