We reported on Friday on a US local police practice of extracting personal cellphone data from homes and businesses by using mobile cell towers mounted on vans. They were pursuing the information with impunity and without judicial knowledge or court approved warrants. More frightening is the fact that these mobile devices, called Stingrays were, in most instances, procured by the local police using federal grants from the US government.
In the article we alluded to a decision by the 11th Circuit Court of Appeals where the ACLU won a major victory against this practice of warrantless bulk information collection from cellphones and how it may lead to a broader ruling on metadata gathering by the US Supreme Court. Today’s piece will expand on the subject and explore the 11th Circuit’s ruling in greater detail, thanks to opinions shared by Jennifer Granick in Wired, June 13.
The decision of the case in question, United States v. Davis, finds for the plaintiff in that information obtained from his cellphone was obtained by gleaning it from nearby cell towers without a warrant. But the ruling is important for another reason, i.e., that the US government’s collection of all kinds of business records and transactional data (metadata) for law enforcement and national security purposes may also be unconstitutional.
It is believed that the decision may strike at the three decades old court-held policy referred to as the “third party doctrine” which holds that a person doesn’t have Fourth Amendment rights with regard to bank records and phone records because one has voluntarily disclosed information to them. Therefore one has assumed the risk that the information could be disclosed to the government. This was the heart of the 1979 case, Smith v. Maryland argued before the US Supreme Court, and the 1976 case of United States v. Miller.
The third party doctrine is what the NSA has used to justify conducting its current warrantless collection of phone call records in addition to its past collection of internet transactional information and its suspected acquisition of financial information. The 11th Circuit opined that using the “reasonable expectation of privacy” test, the Fourth Amendment protected location information. Phone records bulk collection programs are in focus in several federal courts and have differing views.
Last December, a D.C. judge held that the bulk collection of phone records violates the Fourth Amendment- regardless of Smith– and called the practice “almost Orwellian”. Other courts have relied on Smith to endorse the program, though this month a judge, also approving the program called for its repeal by the US Supreme Court.
So opponents of bulk data gathering may take heart that change is in the offing. Maybe more recent cases can shed some light on the direction all this is heading. In a 2012 case, US v.Jones, the Supreme Court held that attaching a GPS-tracking device to a vehicle and using the device to monitor the car’s movement was a trespass that violated the Fourth Amendment because it interfered with the defendant’s property interest in the car.
Five justices agreed that the GPS surveillance “impinge[d] on expectations of privacy” because it allowed authorities to monitor every place a suspect travelled and thus could infer many things about a suspect’s private life based on those movements. The 11th Circuit relied on Jones in concluding that under the “reasonable expectation of privacy” test, cell phone location data is also protected under the Fourth Amendment. It was their view that the average person does not know that by using their cell phone they are sending their location information to a provider.
Because the call detail records that the NSA obtains under its section 215 collection program – which provide information about phone numbers called, 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, it is thought that their constitutionality will not hold water. Hence, the hope of constitutionally prohibiting these practices appears real at this time.
In the 2012 Jones case , Justice Sonia Sotomajor writing for the majority reasoned that it may be time to revisit the third party doctrine and reverse the 70’s era laws- putting them more in the context of the 21st century communications, data and the post-9/11 political climate. If it does than a great victory for privacy lovers will be at hand-not only for cell phone users. It may mean the beginning of the end of bulk data gathering by the NSA and their ilk. One can only hope.