Privacy protections were weakened by a federal appeals court decision that ruled the government can use cell phone location data to identify criminal suspects.
The court ruled that “the FBI’s collection of cell-site data was not a search under the Fourth Amendment,” according to ABA Journal.
The decision, made by the 6th Circuit U.S. Court of Appeals, distinguished “between the content of a communication and the information necessary to convey it” to justify the FBI’s actions, as Circuit Judge Raymond Kethledge wrote.
In a four-month period beginning December 2010, Timothy Carpenter and Timothy Sanders committed nine armed robberies in the Detroit area, along with seven accomplices in total. When police arrested four suspects for the robberies, one confessed to the robberies. He “gave the FBI his own cellphone number and the numbers of other participants; the FBI then reviewed his call records to identify still more numbers that he had called.”
The FBI then submitted three orders to magistrate judges for “transactional records” from phone companies, expecting those records to provide evidence that connected Carpenter and Sanders to the robberies. The judges approved the application, and the FBI used those records, with testimony from the seven accomplices, as evidence that Carpenter and Sanders “served as lookouts during the robberies.” Both filed a motion to exclude the location data, but the district court denied the motion. The phone records connected the two by location that showed they “were within a half-mile to two miles of the location of each of the robberies around the time the robberies happened.”
They were then convicted, Carpenter to 1,395 months’ imprisonment and Sanders to 170 months’ imprisonment. The two appealed and argued that “the government’s collection of those records constituted a warrantless search in violation of the Fourth Amendment.” They wanted the data collection evaluated based on probable cause under the Fourth Amendment, which would require a search warrant, rather than “reasonable ground,” which required a magistrate judge’s approval, but not a search warrant.
“The federal courts have long recognized a core distinction: although the content of personal communications is private, the information necessary to get those communications from point A to point B is not,” Justice Kethledge wrote.
Business records such as the location of cell phones making a call, then, aren’t protected like the content of the phone call is.
“Those records say nothing about the content of any calls. Instead the records include routing information, which the wireless providers gathered in the ordinary course of business … Thus, the cell-site data—like mailing addresses, phone numbers, and IP addresses—are information that facilitate personal communications, rather than part of the content of those communications themselves. The government’s collection of business records containing these data therefore is not a search,” Kethledge wrote.
The decision mirrors prior decisions from the 5th and 11th Circuits that those records can be accessed without a search warrant, The Washington Post noted.
Privacy advocates opposed the decision, concerned that it gives the government justification for a wide range of privacy-violating actions. “The majority’s opinion unfortunately fails to adequately account for the privacy violations made possible by the cell phones that we all need to carry around to live our lives normally,” ACLU Staff Attorney Nathan Freed Wessler told ABA Journal.
