CA4 en banc: CSLI is mere third-party information not requiring SW

CSLI is third-party information the government does not need a warrant to obtain. 221 days worth of information was admissible. It’s up to Congress or SCOTUS to change the third-party doctrine. United States v. Graham, 2016 U.S. App. LEXIS 9797 (4th Cir. May 31, 2016) (en banc):

In United States v. Graham, 796 F.3d 332 (4th Cir. 2015), a panel of this court affirmed the convictions of Defendants Aaron Graham and Eric Jordan arising from their participation in a series of armed robberies. The panel opinion sets out the facts of this case in great detail. Id. at 339-43. The only facts now relevant concern the portion of the Government’s investigation during which it obtained historical cell-site location information (CSLI) from Defendants’ cell phone provider. This historical CSLI indicated which cell tower – usually the one closest to the cell phone – transmitted a signal when the Defendants used their cell phones to make and receive calls and texts. The Government used the historical CSLI at Defendants’ trial to place them in the vicinity of the armed robberies when the robberies had occurred.

A majority of the panel held that, although the Government acted in good faith in doing so, it had violated Defendants’ Fourth Amendment rights when it obtained the CSLI without a warrant. The majority directed that henceforth the Government must secure a warrant supported by probable cause before obtaining these records from cell phone providers. The Government moved for rehearing en banc, which we granted, vacating the panel opinion. See United States v. Graham, 624 F. App’x 75 (4th Cir. 2015); 4th Cir. R. 35(c). We now hold that the Government’s acquisition of historical CSLI from Defendants’ cell phone provider did not violate the Fourth Amendment.

Supreme Court precedent mandates this conclusion. For the Court has long held that an individual enjoys no Fourth Amendment protection “in information he voluntarily turns over to [a] third part[y].” Smith v. Maryland, 442 U.S. 735, 743-44 (1979). This rule — the third-party doctrine — applies even when “the information is revealed” to a third party, as it assertedly was here, “on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” United States v. Miller, 425 U.S. 435, 443 (1976). All of our sister circuits to have considered the question have held, as we do today, that the government does not violate the Fourth Amendment when it obtains historical CSLI from a service provider without a warrant. In addition to disregarding precedent, Defendants’ contrary arguments misunderstand the nature of CSLI, improperly attempt to redefine the third-party doctrine, and blur the critical distinction between content and non-content information.

The Supreme Court may in the future limit, or even eliminate, the third-party doctrine. Congress may act to require a warrant for CSLI. But without a change in controlling law, we cannot conclude that the Government violated the Fourth Amendment in this case.

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