The big news out of the 11th Circuit yesterday was this opinion in United States v. Quartavious Davis.
One of the issues on appeal was whether the government violated the 4th Amendment when it gathered the cell phone site location for an armed robber. The three panel bench held that a person has a reasonable expectation of privacy in his/her cell phone location information. Davis at 23.
The Court used a reasoned analysis to distinguish a car’s GPS data (United States v. Jones) from cell phone location information:
One’s cell phone, unlike an automobile, can accompany its owner anywhere. Thus, the exposure of the cell site location information can convert what would otherwise be a private event into a public one. When one’s whereabouts are not public, then one may have a reasonable expectation of privacy in those whereabouts. Therefore, while it may be the case that even in light of the Jones opinion, GPS location information on an automobile would be protected only in the case of aggregated data, even one point of cell site location data can be within a reasonable expectation of privacy. In that sense, cell site data is more like communications data than it is like GPS information. That is, it is private in nature rather than being public data that warrants privacy protection only when its collection creates a sufficient mosaic to expose that which would otherwise be private.
Davis at 19-20.
The 11th Circuit also relied on a 3rd Circuit decision (In re Electronic Communications Service to Disclose) finding that “a cell phone customer has not ‘volunatrily’ shared his location information with a cellular provider in any meaningful way,” because “it is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information.” Davis at 22.
Of course, even though the government’s actions were wrong, the lower court decision didn’t create a reversible error. Davis at 23-25. In this case, the “Leon exception” — the “good faith” exception to the exclusionary rule — prevailed. Id.
Additionally, although this Davis is a huge divergence into establishing rules for cell phones or mobile devices, we shouldn’t get too excited about the “swift pace of justice.”
First, the Leon exception still applies to most cases. Second, the armed robber ultimately lost (no reversible error), so this will go before an en banc 11th Circuit, who will most likely sustain the three-panel ruling. SCOTUS probably will not take up this issue. Finally, but perhaps most importantly, the government continues to get a “rubber stamped” warrant pursuant to the Stored Communications Act, 18 USC 2703. And for those that don’t know, the Stored Communications Act does not require probable cause — the standard is reasonable grounds under the Stored Communications Act.
Thus, Big Brother’s still watching . . . he/she just needs a warrant.