A major decision on the future of technology and crime investigations was issued a few hours ago by all the judges who sit on the United States Court of Appeals for the Eleventh Circuit, the offices of which are a few blocks away from us here in Atlanta. The eleven judges wrote over 100 pages of opinions on the question of whether the police can use information that is less than the usual “probable cause” standard when obtaining data about the various cell towers hit by your mobile phone as you move through your daily life. This “less than probable cause” standard is written into the Stored Communications Act (the SCA), a law that was enacted before smart phones became such prevalent features of modern life. The case is United States v. Davis, and can be read here.
As we see so often, whether we win or lose, the best description of what a case is really all about comes from the judges who disagree, or as we lawyers call it, “the dissent.” Judge Beverly Martin described the case this way:
In this case, the government got 67 days of cell site location data disclosing Quartavious Davis’s location every time he made or received a call on his cell phone. It got all this without obtaining a warrant. During that time, Mr. Davis made or received 5,803 phone calls, so the prosecution had 11,606 data points about Mr. Davis’s location. We are asked to decide whether the government’s actions violated Mr. Davis’s Fourth Amendment rights. The majority says our analysis is dictated by the third-party doctrine, a rule the Supreme Court developed almost forty years ago in the context of bank records and telephone numbers. But such an expansive application of the third-party doctrine would allow the government warrantless access not only to where we are at any given time, but also to whom we send e-mails, our search-engine histories, our online dating and shopping records, and by logical extension, our entire online personas.
Just about all of the judges noted that in the past several years there has been a ground swell of rulings in which older decisions are being cast aside in the context of new technologies. Rulings from 20 years ago where prosecutors regularly got judges to permit ever larger incursions into personal privacy are now being reconsidered, mostly because cell phone and other technologies permit amazing entry into our personal lives with a few touches of a button or a screen. The storm caused when Edward Snowden revealed that our government has been keeping warehouses of our cell and internet traffic has also effected this debate. Despite these changes, the majority in today’s case falls back on the old rationales. They say that Mr. Davis (and by extension, the rest of us) do not have an expectation of privacy in the data transmitted between our phones and the cell towers that connect those phones to our friends, loved ones, social media sites and the internet. Furthermore, the judges in the majority distinguish the recent Supreme Court cases that disallowed warrantless GPS trackers or warrantless cell phone searches. Finally, they say that if some crazy Americans (meaning all of us) want to assure that our government does not unnecessarily snoop into our lives, we should gather our pitchforks and storm Congress to make changes to the SCA.
I applaud the lawyers on both sides, for representing their clients in this fascinating and fast-changing landscape where the 18th Century language embedded into the Fourth Amendment runs headlong into the iPhone 6 and similar devices. I just wish judges were a little more brave sometimes and willing to see what is obvious to the rest of us: the world is changing at a rapid pace and the legal system should be tired of always bringing up the rear. Stay tuned, this set of issues is far from over.