Eleventh Circuit, disagreeing with the Fifth, holds Fourth Amendment protects cell-site records

June 11

The Eleventh Circuit created a circuit split today on whether the Fourth Amendment protects historical cell-site information. Last year, the Fifth Circuit held that it doesn’t; today the Eleventh Circuit held that it does. The Eleventh Circuit’s opinion is premised on the idea that some facts are inherently private. If the government learns those facts, then a search occurs. Here, the court concludes that cell-site information reveals private facts about you such as whether you are “near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute.” Because those facts are by nature private, the court holds, the government violates a reasonable expectation of privacy when it learns those facts by collecting cell-site records from cellular phone providers.

I think this reasoning is wrong, and it’s certainly inconsistent with the Fifth Circuit’s recent decision. In this post, I’ll explain the reasoning of the decision and then offer some thoughts on it and where it might go next.

The key reasoning of the new decision, United States v. Davis, appears on page 18-19:

[E]ven on a person’s first visit to a gynecologist, a psychiatrist, a bookie, or a priest, one may assume that the visit is private if it was not conducted in a public way. 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.

The court adds:

While committing a crime is certainly not within a legitimate expectation of privacy, if the cell site location data could place him near those scenes, it could place him near any other scene. There
is a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute.

In the court’s view, obtaining cell site information triggers the Fourth Amendment even more readily than does obtaining GPS information attached to a car. A car’s location is public location as long as it’s not in a garage. According to the court, that’s why you need to get to a mosaic of many data points about the location of the car before the information crosses the line from public to private under the mosaic theory of Maynard. You don’t need that with cell-site information, the court reasons. Because even a single data point could reveal something private about you, obtaining even a single cell-site record can violate your reasonable expectation of privacy and therefore becomes a Fourth Amendment “search.”

What about Smith v. Maryland, on which the Fifth Circuit based its contrary opinion? The Eleventh Circuit finds that Smith is “not without persuasive force.” But Smith does not apply, the court holds, because most people don’t know that their cell phones can act as tracking devices. Because most people don’t think their phones can reveal their location, they have a reasonable expectation of privacy in their cell-site data even though their phones must reveal location to the cellular provider to work. Thus individuals don’t knowingly disclose their cell-site records to their cellular providers under Smith v. Maryland because they don’t know how phones work. (Here the Eleventh Circuit relies heavily on dicta from a Third Circuit decision that I blogged about here.)

Next, the court rules that the government nonetheless wins by extending the good-faith exception to the exclusionary rule articulated in United States v. Leon. Under Supreme Court’s decision in Leon, the exclusionary rule does not apply to good-faith reliance on a defective search warrant. There was no warrant in this case. But the Eleventh Circuit find this distinction “semantic,” as there was a court order under 18 U.S.C. 2703(d). So the exclusionary rule doesn’t apply, and the cell-site records were properly admitted.

A few thoughts.

First, this creates a clear circuit split with the Fifth Circuit. Because DOJ won under the good-faith exception, however, it’s not clear that DOJ can seek review of the Eleventh Circuit’s opinion. It’s possible that DOJ could seek review of the merits (either en banc or in a cert petition) by seeking an extension of Camreta v. Greene. That might work, but it’s not clear that courts would recognize the extension. The same issue arose when DOJ lost the Cotterman case en banc in the Ninth Circuit, although no DOJ cert petition was filed. Either way, with the Supreme Court’s expansion of the good-faith exception it’s a pretty important issue. For an unusually good student note on this question, see here.

Second, on the merits, I think the Eleventh Circuit’s analysis is based on a misunderstanding of Fourth Amendment law. The Eleventh Circuit’s argument seems to be based on the idea that some facts are inherently private. Recall this passage:

While committing a crime is certainly not within a legitimate expectation of privacy, if the cell site location data could place him near those scenes, it could place him near any other scene. There
is a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute.

So according to the Eleventh Circuit, if the government learns that you’re committing a crime, that’s okay. But if they learn that you’re near a church, then that’s a search. I gather this is coming from intuitions about stuff that is none of the government’s business. It’s good for the police to know someone is committing a crime. We like that. On the other hand, the government has no business knowing if an innocent person is near a lover’s home.

But there’s a reason the court cites no cases for this idea: As far as I know, there are none. The Fourth Amendment does not declare certain facts to be inherently protected by the Fourth Amendment regardless of how they are obtained. What matters is how the government learns those facts, not the facts themselves. For example, let’s say a cop stands on a public street in front of a church and watches people enter and exit. From that, the cop learns not only who is near the church but who has entered and exited it. Traditionally this has not thought to be a search. The officer is just watching what occurs in public, which is not protected. Under the Eleventh Circuit’s opinion, does this public surveillance now violate your “reasonable privacy interest in being near . . a place of worship”? I have no idea. This reasoning is really novel.

Also, I didn’t think the Eleventh Circuit persuasively distinguished Smith v. Maryland. I explained why in my 2010 post, Cell Phones, Magic Boxes, and the Fourth Amendment:

The results of the reader poll on how cell phones work were quite startling: With over 1,600 votes cast, the results indicated that 95% of those who answered the poll know that cell providers get location information. Only 5% didn’t know that. Of course, Volokh Conspiracy readers aren’t typical: They have the intelligence and sophistication to visit here. Plus, it makes sense that the poll would over-represent readers who know of such things. All things being equal, you’re more likely to answer a poll if you know what it’s talking about than if you don’t. Still, the numbers were surprisingly lopsided.

The reason I asked, as some have figured out, is that one of the legal issues that arises in whether the Fourth Amendment protects cell-site data is whether users know that the information is transmitted. My own view is that as a matter of law, courts should assume that users of a technology understand the technology when the courts apply Fourth Amendment law to it. The Constitution shouldn’t safeguard ignorance, and even if it did, improving understanding over time means that any rule based on ignorance has a limited shelf-life. Further, past Supreme Court cases have presupposed understandings of the technology: In Smith v. Maryland, for example, the Court presupposed that people know how telephones work when there wasn’t actually any evidence in the case that this was true.

But even if you don’t agree with me this, it’s just interesting to get a sense of what different users know about what information cell phones reveal. Some courts have concluded that reasonable people don’t know how cell phones work, and that they are sort of a magic box that secretly gives away location information. They haven’t offered any empirical support for this view: It is just offered as a guess of what reasonable people think. My intuition is that this guess closely matches what the judge thought before the judge had the case: If the judge saw the technology as a magic box, then that is how a judge will conclude a reasonable person would think about it. What’s interesting to me is that the VC readers who answered the poll don’t see cell phones as magic boxes. Instead, they overwhelmingly know how cell phones work.

Finally, on the exclusionary rule, the Eleventh Circuit managed to misapply Leon in a way that seems to replicate the result of Illinois v. Krull, which held that the good faith exception applies to good faith reliance on a statute that authorizes a search later found unconstitutional. I think the Eleventh Circuit ultimately gets to the result that is correct under Krull. But it would have been better for the Court to find Krull and apply it directly rather than come up with tortured logic to justify that outcome based on the very different case of Leon.

As always, stay tuned.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.
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Will Baude | June 11