A federal appeals court in Atlanta reversed itself in a ruling Tuesday, saying that individuals have no reasonable expectation of privacy in their historical cellphone location records and so the government needs no warrant to obtain them.
The ruling was issued by the full 11-judge court of the U.S. Circuit Court of Appeals for the 11th Circuit, overturning an opinion last year by a three-judge panel.
The case arises out of the 2012 conviction of Quartavious Davis for a string of robberies in the Miami area. He appealed his conviction, in part, on grounds that the cellphone tower records used to place him near the crime scenes were obtained on a court order and should have required a warrant.
Federal investigators obtained Davis’s records with a court order based on “specific and articulable facts” showing “reasonable grounds” to believe that his cell tower location records were “relevant and material” to the investigation. That is a lesser standard than a warrant based on probable cause that the records sought will yield evidence of the crime.
“Cell tower location records do not contain private communications of the subscriber,” the court said in its ruling. “This type of non-content evidence, lawfully created by a third-party telephone company . . . does not belong to Davis, even if it concerns him. . . . Davis has no subjective or objective reasonable expectation of privacy in [the phone company’s] business records showing the cell tower locations that wirelessly connected his calls at or near the time of six of the seven robberies.”
The court agreed with a long-held view that an American has no reasonable expectation of privacy in certain types of information voluntarily turned over to third parties such as phone companies and banks. The “third party” doctrine has been used to justify obtaining records such as phone numbers dialed without a warrant.
Davis’s attorneys said they will appeal the ruling to the Supreme Court, which traditionally is more inclined to take cases to decide issues on which there is disagreement in the lower courts.
The U.S. Court of Appeals for the 3rd Circuit in Philadelphia has held that the third-party doctrine does not necessarily apply to historical cell tower records, because customers do not voluntarily convey their location information to the provider — they have no choice but to do so to make or receive a call.
“The reach of the majority opinion is breathtaking,” said David Oscar Markus, Davis’s attorney. “It means that the government can get anything stored by a third party — your Facebook posts, your Amazon purchases, your Internet search history, even the documents and pictures you store in the cloud, all without a warrant.”
Orin S. Kerr, a constitutional lawyer and professor at George Washington University, said the court’s ruling is “a noteworthy expansion of the exception to the warrant requirement.” He was referring to its holding that even if cell records were protected by the Fourth Amendment, no warrant would be required.
That position, he said, is “probably inconsistent’’ with the Supreme Court, which has long held that if a person has a reasonable expectation of privacy in his possessions or records, then those objects ordinarily may not be searched without a warrant.
Justice Department spokesman Peter Carr said, “We are pleased with the decision.”
Two of the 11 judges dissented from the majority. Several of the concurring judges expressed misgivings with current case law, suggesting it may be time for the Supreme Court to reevaluate the third-party doctrine.
Correction: An earlier version of this article said the U.S. Circuit Court of Appeals for the 11th Circuit is in Florida. It is in Atlanta.