By Ken Wallentine
Earlier this year, Xiphos told you about using historical cell site location information (CSLI) to help convict Aaron Graham of armed robbery. Graham and his accomplice, Eric Jordan, were convicted of a string of armed robberies. They challenged the prosecution’s use of historical cell site location information (CSLI) to show that the suspects were in the vicinity of the stores at the times of the robberies. The prosecution obtained the CSLI through court orders issued under authority of the Electronic Communications Privacy Act or the Stored Communications Act.
The trial court admitted the evidence. A panel of the 4th Circuit Court of Appeals reversed, holding that Graham and Jordan have an objectively reasonable expectation of privacy in the CSLI captured and held by their mobile phone service providers. The court also rejected the government’s argument that the CSLI was voluntarily provided to the mobile phone service providers and therefore lost its privacy protection under the third-party doctrine: “We cannot accept the proposition that cell phone users volunteer to convey their location information simply by choosing to activate and use their cell phones and to carry the devices on their person.” The three-judge panel held that the act of ordering a provider to hand over these types of detailed records is a search under the Fourth Amendment and that a search warrant was necessary to obtain the records.
Last May, the Fourth Circuit Court of Appeals assembled en banc reversed the panel and upheld the trial court’s decision to admit the CSLI evidence. The full court applied the third-party doctrine to conclude that the Fourth Amendment does not require a warrant to obtain historical CSLI. Graham had already voluntarily disclosed his location information to a third party, his cellular phone provider. Thus, according to the full court, Graham surrendered his expectation of privacy in his historical CSLI.
A petition for certiorari was filed with the U.S. Supreme Court. In the past few weeks, several privacy advocacy groups have filed friend of the court briefs urging the Supreme Court to accept the case. The Court has yet to give thumbs-up or thumbs-down on whether it will hear the case.
Whether a warrant is required to obtain CSLI or whether an order under the Electronic Communications Privacy Act or the Stored Communications Act is sufficient is a question ripe for consideration by the Supreme Court. State courts in Massachusetts, New Jersey and Florida; the federal 3rd Circuit Court of Appeals; and federal district courts in California, Maryland and New York have reached decisions generally requiring a search warrant to obtain CSLI. On the other hand, the 4th, 5th, 6th and 11th Circuit Courts of Appeals have reached conflicting decisions. Several states, including Utah, Colorado, Maine, Minnesota, Montana and Tennessee, have moved forward with legislative measures protecting CSLI.
The case of Aaron Graham v. United States may well be the moment that Justice Sotomayor has awaited. In her concurring opinion in United States v. Jones (132 S.Ct. 945 (U.S. 2012)), Justice Sotomayor observed that the current analysis of expectation of privacy in information voluntarily disclosed to third parties is “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” Stay tuned—a decision is expected soon.
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CHIEF KEN WALLENTINE is a Special Agent who directs the Utah Attorney General Training Center, overseeing use of force training and investigation and cold case homicide investigations. He is also a consultant and Senior Legal Advisor for Lexipol. Ken formerly served as Chief of Law Enforcement for the Utah Attorney General, serving over three decades in public safety before a brief retirement. He also serves as the Chairman of the Peace Officer Merit Commission of Greater Salt Lake County.