Appeals Court Says Warrantless Phone Tracking Doesn't Violate 4th Amendment Because 'Third Party Doctrine'

For about a year now, we've been following the Quartavious Davis en banc appeal case, in which Davis's lawyers were challenging the use of historical cell phone location data (not real time GPS info) that was collected without a warrant in order to convict him (technically, they used a 2703(d) order, which is a much lower standard than a warrant, which requires probable cause, rather than "specific and articulable facts that there are reasonable grounds" to believe that the info is "relevant and material to an ongoing criminal investigation"). Given the renewed interest of the Supreme Court (and other courts) in issues related to the 4th Amendment when it meets up with modern technology, this case got a lot of attention in the last few months. The 11th Circuit has now ruled and it isn't going to make 4th Amendment supporters happy. The court ruled that warrantless tracking of your mobile phone location is not an "illegal search" under the 4th Amendment... because of the old (and ridiculous) third party doctrine.

In case you've been living under a rock and not following such things, the third party doctrine basically says you have no expectation of privacy in data that third parties hold on you -- such as... phone records. This doctrine has a lot of problems (going all the way back to the Smith v. Maryland case that is generally cited in support of the doctrine). But, here, the court just runs with it. It spends a few pages restating the ruling in Smith v. Maryland, clearly agreeing with it, and then it drops the hammer:

For starters, like the bank customer in Miller and the phone customer in Smith, Davis can assert neither ownership nor possession of the third-party’s business records he sought to suppress. Instead, those cell tower records were created by MetroPCS, stored on its own premises, and subject to its control. Cell tower location records do not contain private communications of the subscriber. This type of non-content evidence, lawfully created by a third-party telephone company for legitimate business purposes, does not belong to Davis, even if it concerns him. Like the security camera surveillance images introduced into evidence at his trial, MetroPCS’s cell tower records were not Davis’s to withhold....

More importantly, like the bank customer in Miller and the phone customer in Smith, Davis has no subjective or objective reasonable expectation of privacy in MetroPCS’s business records showing the cell tower locations that wirelessly connected his calls at or near the time of six of the seven robberies.

It dives in a bit deeper on the "expectation of privacy" question and says that no one should have any expectation of privacy in their cell location data, basically saying that you should know that you're giving up such info to a third party who can give it to law enforcement:

We find no reason to conclude that cell phone users lack facts about the functions of cell towers or about telephone providers’ recording cell tower usage.

Thus, no "expectation" of privacy.

It also argues this is no different than the ruling in Smith v. Maryland, because, back then, just having the phone numbers (what that case was about) was the equivalent of also showing location, since in that pre-mobile phone era, a phone number also automatically revealed location since it was tied to an address. As for the public policy reasons why this result is pretty scary concerning the public's privacy, the court says, "Hey, take it up with Congress."

The court also distinguishes this case from the Supreme Court's ruling in US v. Jones from a few years ago, that said that attaching a GPS device to a car could violate the 4th Amendment due to it being a "trespass" (though on the side, some Justices raised concerns about the ongoing collection of location data). Basically the court here said it doesn't matter here, as there's no similar "trespass" situation with the MetroPCS data.

Two of the judges on the panel dissented, and pointed out just how crazy the third party doctrine is in this situation, and how it basically destroys the 4th Amendment:

We are asked to decide whether the government’s actions violated Mr. Davis’s Fourth Amendment rights. The majority says our analysis is dictated by the third-party doctrine, a rule the Supreme Court developed almost forty years ago in the context of bank records and telephone numbers. But such an expansive application of the third-party doctrine would allow the government warrantless access not only to where we are at any given time, but also to whom we send e-mails, our search-engine histories, our online dating and shopping records, and by logical extension, our entire online personas.

In short, those two judges rightly recognize just how problematic the third party doctrine is. In an age where all our info goes to third parties, the 4th Amendment basically goes away. Later, that same dissent notes:

The majority’s blunt application of the third party doctrine threatens to allow the government access to a staggering amount of information that surely must be protected under the Fourth Amendment. Consider the information that Google gets from users of its e-mail and online search functions. According to its website, Google collects information about you (name, e-mail address, telephone number, and credit card data); the things you do online (what videos you watch, what websites you access, and how you view and interact with advertisements); the devices you use (which particular phone or computer you are searching on); and your actual location.... Like in Miller and Smith, Google even offers a legitimate business purpose for such data storage and mining: “Our automated systems analyze your content (including emails) to provide you personally relevant product features, such as customized search results, tailored advertising, and spam and malware detection.” Id. Under a plain reading of the majority’s rule, by allowing a third-party company access to our e-mail accounts, the websites we visit, and our search-engine history—all for legitimate business purposes—we give up any privacy interest in that information.

And why stop there? Nearly every website collects information about what we do when we visit. So now, under the majority’s rule, the Fourth Amendment allows the government to know from YouTube.com what we watch, or Facebook.com what we post or whom we “friend,” or Amazon.com what we buy, or Wikipedia.com what we research, or Match.com whom we date—all without a warrant. In fact, the government could ask “cloud”-based file-sharing services like Dropbox or Apple’s iCloud for all the files we relinquish to their servers. I am convinced that most internet users would be shocked by this. But as far as I can tell, every argument the government makes in its brief regarding cell site location data applies equally well to e-mail accounts, search-engine histories, shopping-site purchases, cloud-storage files, and the like.

Either way, it's pretty clear this issue is heading to the Supreme Court sooner or later (even possibly with this very case). But, for today, this ruling is a pretty big hit against your privacy.

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