E.D.Wis.: CSLI is third-party information and SW not required, rejecting CA4’s Graham

CSLI information is merely third party information in which there is no reasonable expectation of privacy, and no warrant was required to collect it. If SCOTUS wanted to deal with third party data it could, but it hasn’t. The Fourth Circuit’s precedent is rejected. (“The defendant urged [USM] Judge Jones, and urges this court, to follow the conclusion reached by a panel of the Fourth Circuit in United States v. Graham, 796 F.3d 332 (4th Cir. 2015), reh’g en banc granted, 624 F. App’x. 75 (4th Cir. Oct. 28, 2015). The court will discuss that decision in more detail in the analysis section, below.” United States v. Wheeler, 2016 U.S. Dist. LEXIS 32461 (E.D.Wis. March 14, 2016):

This court also is puzzled by the Graham court’s assertion that an individual has a reasonable expectation of privacy in cell tower data because she does not know which cell towers transmit the communications, or where they are located. Cell users know that they need to be in some sort of proximity to a tower in order to have cellular service. Those who drive specific routes each day to work know well the spots where they’re likely to lose service, and where they will regain it. Subway riders know why they lose service when they enter the tunnels. Perhaps cell users do not know, at the moment they discover that they have reception, where the tower is located. But users of cell phones know, at all times, that if their phone is connected to a network, they’re in some kind of proximity to a tower, and that if it is not connected, they likely aren’t.

In sum, this court does not agree with the Graham court that a cell phone user has a reasonable expectation that the government cannot track his location via his phone.

Conclusion

The court concludes that the government’s collection of cell tower location data from the cell phone provider does not constitute a “search” under the Fourth Amendment. The collection of the data does not involve a trespass upon an individual’s person or property, nor into a physical area in which the person has established a reasonable expectation of privacy. Individuals do not have a reasonable expectation that they may use their cell phones to make and receive calls and yet have their location remain private. Because the collection of this data does not constitute a search, the government did not violate the Fourth Amendment by obtaining the defendant’s cell tower location data by means of a court order, rather than by obtaining the SCA-authorized order. The court ORDERS that the defendant’s December 4, 2015 motion to suppress evidence is DENIED.