Link: http://truthvoice.com/?p=2322
Investigators do not need a search warrant to
obtain cellphone tower location records in criminal prosecutions, a
federal appeals court ruled Tuesday in a closely-watched case involving
the rules for changing technology.
The Atlanta-based 11th U.S. Circuit Court of
Appeals, overturning a three-judge panel of the same court, concluded
that authorities properly got 67 days’ worth of records from MetroPCS
for Miami robbery suspect Quartavious Davis using a court order with a
lower burden of proof.
In its 9-2 decision, the 11th Circuit decided
Davis had no expectation of privacy regarding historical records
establishing his location near certain cellphone towers. The records
were key evidence used to convict Davis of a string of armed robberies,
leading to a 162-year prison sentence.
In fact, Circuit Judge Frank M. Hull wrote for the
majority, it’s clear that cellphone users in today’s society understand
how companies collect data about calls and that cell towers are a key
part of that.
“We find no reason to conclude that cellphone
users lack facts about the functions of cell towers or about telephone
providers’ recording cell tower usage,” Hull wrote. “This cell tower
method of call connecting does not require a different constitutional
result just because the telephone company has decided to automate
wirelessly.”
Two judges dissented, contending the Fourth
Amendment requires probable cause and a search warrant for such records
and some judges in the majority agreed in separate opinions that the
U.S. Supreme Court should make the ultimate decision. Davis attorney
David O. Markus said the dissent could provide a “roadmap” for a likely
appeal to the high court.
“Unfortunately, the majority is stuck in the early
`80s when cell-phones were the size of bricks and cost $3,000. The
cases from that long-ago era aren’t helpful in today’s world,” Markus
said.
Markus called the decision “breathtaking,”
contending it could mean government investigators could have access
without a search warrant to all kinds of personal data stored by a third
party such as Facebook posts, purchases on Amazon and even pictures in
“cloud” storage.
The Miami case has drawn wide interest from civil
liberties groups and others, with briefs in support of the search
warrant requirement filed by the ACLU, the Reporters Committee for
Freedom of the Press, the National Association of Criminal Defense
Lawyers and many others.
“The majority opinion fails to appreciate the
necessity of protecting our privacy in the digital age,” said Nathan
Freed Wessler, staff attorney at the Speech, Privacy and Technology
Project of the American Civil Liberties Union.
The 11th Circuit, however, said existing law
regarding information possessed by third parties clearly governs the
Davis cellphone tracking data. Those who want the law changed should
look to Congress and the state legislatures, not the judicial system,
the judges said.
The decision Tuesday is similar to an earlier
ruling by the 5th U.S. Circuit Court of Appeals, while the 3rd Circuit
has ruled a search warrant may be required for cell tower records if
privacy rights might be affected. Federal appeals courts are also
considering cases from Maryland and Michigan.
