Cell phones have become an unquestionably ubiquitous part of everyday life for a large majority of Americans. Many take their phones with them everywhere and use them for numerous functions throughout the course of their day. Consequently people often inadvertently or purposefully store a host of personal information on such devices. The Supreme Court has recently recognized some limited privacy interests in the contents of an individual’s cell phone. However, the Fourth Amendment generally does little to protect the warrantless seizure of such information by law enforcement authorities. Courts often invoke the third party doctrine in reasoning that no objectively reasonable expectation of privacy exists in information that a cell phone user willingly shares with another party such as their cell phone provider.

Recently, courts have grappled with applying existing Fourth Amendment jurisprudence to cell phone site location information. This data, which reveals the location of the cell phone user, is automatically cataloged when the phone communicates to the nearest cell tower. Although the locational information provided to law enforcement was initially rather vague it is becoming increasingly accurate with the proliferation in quantity and quality of cell towers. Longer-term monitoring may also effectively reveal individual patterns or other potentially personal information.

In arguing that law enforcement should have access to this information without need for obtaining a warrant, the government has maintained that cell site location information should be available through application of the third party doctrine. However, privacy proponents argue that this doctrine hinges on both a knowing and voluntary disclosure which arguably does not exist with the disclosure of cell site location information. Alternatively, the pervasive nature of these searches may render them subject to an objectively reasonable expectation of privacy.

The Supreme Court has yet to elucidate a clear approach to the application of the Fourth Amendment to newer forms of digital media. Meanwhile, lower courts have adopted differing approaches. In 2013, the Fifth Circuit determined that court orders compelling providers to produce historical cell site location information were not per se unconstitutional when done without probable cause. However, some state and district courts have required the government to make a showing of probable cause for such information. Most recently the 11th Circuit temporarily created a circuit split with the Fifth Circuit by concluding that probable cause is necessary for obtaining such information. The decision was vacated pending an en banc hearing that convened on February 24th. Regardless of the outcome of the rehearing, this issue is likely to continue percolating throughout federal and state courts.

Reed Nixon

2 Responses to Cell Phones, Privacy and the Unclear Scope of the Fourth Amendment

  1. jlukasiewicz says:

    With the advancements in technology, the court will most likely need to reform how they evaluate privacy issues. The third party doctrine and reasonable expectation of privacy tests no longer seem applicable. Many individuals transfer data unknowingly simply by owning a cell phone. Since cell phones are carried with most individuals at all time, obtaining cell site data location without a warrant seems very problematic. Cell site data location is imprecise which even strengthens the need for a warrant when obtaining this information.

    The recent Supreme Court cases, Davis and Jones, may reveal deference to individual privacy rights in regards to cell phone data. In Riley v. California, the Court held it unconstitutional for the government to obtain data stored on the mobile phone without a warrant. In Jones v. US, the Court held warrantless GPS tracking of unconstitutional. Both these cases illustrate how cell phones and mobile tracking create unique privacy rights.

    Hopefully, in resolving the circuit split, the Court will protect Fourth Amendment rights by modifying the privacy tests used in this technological age.

  2. Kevin Saunders says:

    I wonder how long it will be before the Supreme Court intervenes to craft a cogent precedent concerning individuals’ data privacy rights over digital media? With the rise of the Internet of Things leading to an increasingly connected universe of consumer electronics, which are constantly uploading and sharing users’ information in the cloud, to what extent can an individual really be said to “willingly share” info related to their location, Internet searches, utility consumption, automobile usage, etc..

    Do we impute knowledge of the 3rd-party’s collection and dissemination of data onto the user? Or impose strict disclosure requirements on the 3rd party, conditioned on consent of the individual? In either event, does it entitle law enforcement officials to the information, which could prove dispositive to the outcome of a criminal proceeding, without first showing probable cause?

    The absence of a clear legal precedent leaves 21st-century Americans uncertain just how secure we are from unreasonable searches and seizures.