Surveillance State: No Warrant Required for Phone Location Records

Federal agents can obtain cellphone records that reveal a caller’s location without a warrant, a Cincinnati-based federal appeals court said on Wednesday in the latest rulingto tackle the scope of privacy protections for data transmitted by personal devices.

The records obtained by the Federal Bureau of Investigation from wireless carriers in 2011 showed that two Detroit men were near the scene of several robberies at the time they were committed. Timothy Carpenter and Timothy Sanders, who were ultimately convicted of participation in nine armed robberies, sought to exclude the records, saying they were protected by the Fourth Amendment.

A 2-1 panel of the Sixth U.S. Circuit Court of Appeals ruled that location records created when a mobile phone connects to a nearby cell tower were the equivalent of the writing on the outside of an envelope, rather than the letter inside.

“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,” wrote Judge Raymond Kethledge. “The government’s collection of business records containing these data therefore is not a search.”

Judge Jane Branstetter Stranch joined the ruling in part but was skeptical of lumping location records together with bank and credit card records that law enforcement officers can retrieve from financial firms without a warrant.

“This case involves tracking physical location through cell towers and a personal phone, a device routinely carried on the individual’s person,” she wrote. “I am not convinced that the situation before us can be addressed appropriately with a test primarily used to obtain business records such as credit card purchases.”

Harold Gurewitz, a lawyer for Mr. Carpenter, said he and his client were considering their next move. They could ask the Sixth Circuit to rehear the case or petition the U.S. Supreme Court to review it. Until the high court steps in, Mr. Gurewitz said, “I think the issue is just going to be unclear.”

A spokeswoman for the U.S. attorney’s office in Detroit, which prosecuted the case, declined to comment.

The ruling aligns the Sixth Circuit with two other regional appeals courts and means that law enforcement officers in Kentucky, Michigan, Ohio and Tennessee can obtain a court order for location data by showing merely that the records are relevant to an ongoing investigation. A warrant requires a showing of probable cause.

A three-judge panel of a fourth federal appeals court ruled in August that police need a warrant to obtain such records. That ruling is under review by the full court.

In recent years, the U.S. Supreme Court has erred on the side of privacy in disputes over whether the Fourth Amendment protects against the installation of a global positioning system tracker on a suspect’s vehicle or a search of his phone during an arrest.

But Judge Kethledge said he was bound a 1979 ruling in Smith v. Maryland in which the U.S. Supreme Court held that the numbers dialed by a caller on a landline aren’t protected by the Fourth Amendment, because the caller knowingly gives that information to phone companies.

“The same things are true as to the locational information here,” he wrote. “Any cellphone user who has seen her phone’s signal strength fluctuate must know that, when she places or receives a call, her phone ‘exposes’ its location to the nearest cell tower and thus to the company that operates the tower.”

The cell records obtained by the FBI showed that Mr. Carpenter and his half brother, Mr. Sanders, were nearby the scene of four robberies in Warren, Ohio, and Detroit in 2010 and 2011.

Mr. Carpenter was sentenced to more than 116 years in prison, while Mr. Sanders was sentenced to about 14 years.

Nathan Freed Wessler, a lawyer for the American Civil Liberties Union, which filed a brief on behalf of Messrs. Carpenter and Sanders, said the ruling failed to account for the privacy violations made possible by devices that “we all need to carry around to live our lives normally.”

He went on, “When police obtain months’ worth of cell phone data comprising thousands of individual locations, like they did in this case, they should have to get a search warrant from a judge,” he said.

Read the Original Article at Wall Street Journal