While it is an American tradition, the 11th Circuit this past Wednesday may have taken the idea of trying to have the newest and best in the neighborhood just a little too far in its analysis of law enforcement’s use of location data.
In the investigation of criminal activity that led to the arrest and conviction of Quartavius Davis, law enforcement used an order, consistent with the Stored Communications Act (SCA), 18 U.S.C. § 2703(d), to collect and examine the cell tower locations that Davis's cell phone connected to at the times he was alleged to be committing his criminal acts. Ultimately, this information was presented at trial by the prosecution as one of the means, among others, that demonstrated that Davis was the perpetrator of those alleged acts. This was over the objection of the defense claiming that such information was subject to the strictures of the Fourth Amendment and that the defendant had a reasonable expectation of privacy in the location data gathered by the cell phone company. While the district court did exclude location data related to the defendant's home, it declined to exclude data that placed him within the close vicinity of each crime location.
All of this has led to the appeal of Davis’s conviction to the 11th Circuit. In examining whether or not the lower court got it right, the 11th Circuit decided that although the facts where not precisely the same, the Supreme Court's decision in U.S. v. Jones did provide guidance regarding the intersection between the Fourth Amendment and location data. In Jones, law enforcement placed a GPS tracking device on the vehicle of a suspect without seeking a warrant to address this particular collection activity. Here, the Supreme Court determined that, in order to be constitutionally consistent, a warrant was necessary to use the GPS tracking device to collect location data.
In reviewing Davis's situation for similarities with Jones, the court here noted that the Supreme Court considered two possibilities for examining the validity of a location data search under the Fourth Amendment; trespass and information privacy. Under Jones, the majority opinion used the trespass path because of the physical placement of the GPS tracking device on the vehicle; however, the remaining justices, although concurring in the final result, believed that the information privacy prong was more appropriate, because of extent to which the data collected described the life of the suspect.
To that end, the 11th Circuit connected the Jones case concurrence with one, In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n. Serv. to Disclose Records to Gov’t, 620 F.3d 304 (3d Cir. 2010), out of the Third Circuit that focused on information privacy as the best method to determine appropriateness of a search without a warrant. Because in Davis's situation there was no physical entry or placement and law enforcement merely collected data, the court added everything together to find that law enforcement's failure to procure a warrant in connection with the location data collection violated the defendant's Fourth Amendment rights.
Unfortunately, the 11th Circuit's math does not add up. Although it is true that location data can (and will) disclose underlying information about the individual associated with the same data, that, in and of itself, is not sufficient under existing Supreme Court precedent to find the search by law enforcement unreasonable. Under U.S. v. Miller and Smith v. Maryland an individual's data released to a third party have less protection under a right to privacy, and therefore law enforcement collection without a warrant does not constitute an unreasonable search under the Fourth Amendment.
Even though the Supreme Court, based on the opinions from Jones, may eventually agree with the ultimate finding conveyed in the 11th Circuit’s opinion, Jones and current Supreme Court cases do not specifically overturn Miller or Smith. The court’s opinion dismisses these two cases relying on the Third Circuit’s reasoning that Miller and Smith applied only to those situations in which “[the individual] voluntarily turns over [data] to third parties,” quoting Smith, and that one does not voluntarily turn over location data, because “it is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information,” quoting the Third Circuit.
This logic, in both this case and the Third Circuit case, does not stand up to scrutiny. It would seem, given the complexity of the telecommunications system that no individual consumer is “aware” of what precisely happens to make it possible for their cell phone to operate; however, most consumers, having experienced the problem of having “no signal,” are aware that the cell phone company must know “where” they are to allow the consumer to connect into the telecommunications system and make their calls. The fact that the consumer may not be fully aware of what this operation would constitute in an understanding of their activities, does not make the ultimate disclosure non-voluntary and outside the scope of both Miller and Smith.
So, unfortunately, a desire to provide better protections than what the Supreme Court has established runs up against what the Supreme Court has already decided. Here, the 11th Circuit really cannot keep up with the Jones.