CSLI third party information accessed under the Stored Communications Act does not violate the Fourth Amendment. United States v. Davis, 2015 U.S. App. LEXIS 7385 (11th Cir. May 5, 2015) (en banc) (4 concurrences, 2 dissents):
In this appeal, we are called on to decide whether the court order authorized by the Stored Communications Act, id. § 2703(d), compelling the production of a third-party telephone company’s business records containing historical cell tower location information, violated Davis’s Fourth Amendment rights and was thus unconstitutional. We hold it did not and was not.
Therefore, the district court did not err in denying Davis’s motion to suppress and we affirm Davis’s convictions. We reinstate the panel opinion, United States v. Davis, 754 F.3d 1205 (11th Cir.), reh’g en banc granted, opinion vacated, 573 F. App’x 925 (11th Cir. 2014), with respect to all issues except those addressed in Parts I and II, 754 F.3d at 1210-18, which are now decided by the en banc court.
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No one disputes that the government’s § 2703 application to the magistrate judge contained “specific and articulable facts” showing “reasonable grounds” to believe MetroPCS’s business records—pertaining to Davis’s 5642 cell phone number—were “relevant and material” to the government’s investigation. The government’s § 2703 application provided a detailed summary of the evidence implicating Davis in the seven robberies, including post-Miranda statements from two accomplices and the DNA evidence found in two getaway cars. Undisputedly, a sufficient showing was made to satisfy the SCA’s statutory requirements.
The magistrate judge’s order granted the § 2703 application. The court order required MetroPCS, the third-party cellular telephone service provider, to produce “all telephone toll records and geographic location data (cell site)” for the 5642 number during the period August 1, 2010 through October 6, 2010.
MetroPCS complied. For this two-month time period, MetroPCS produced its stored telephone records for number 5642 showing these five types of data: (1) telephone numbers of calls made by and to Davis’s cell phone; (2) whether the call was outgoing or incoming; (3) the date, time, and duration of the call; (4) the number assigned to the cell tower that wirelessly connected the calls from and to Davis; and (5) the sector number associated with that tower. For ease of reference, the fourth and fifth items are collectively called “historical cell tower location information.”
Importantly though, MetroPCS’s business records did not show (1) the contents of any call; (2) the contents of any cell phone; (3) any data at all for text messages sent or received; or (4) any cell tower location information for when the cell phone was turned on but not being used to make or receive a call. The government did not seek, nor did it obtain, any GPS or real-time (also known as “prospective”) location information.
Despite the SCA’s protections, Davis claims the court’s § 2703(d) order compelling the production of MetroPCS records violated his Fourth Amendment rights. To prevail on his Fourth Amendment claim, Davis must show both (1) that the application of the SCA to the facts of his case involved a “search” within the meaning of the Fourth Amendment, and (2) that such search was unreasonable.
This Davis cannot do.B. What Constitutes a “Search”
The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. A party may establish a Fourth Amendment search by showing that the government engaged in conduct that “would have constituted a ‘search’ within the original meaning of the Fourth Amendment,” United States v. Jones, 565 U.S. __, __, 132 S. Ct. 945, 950 n.3 (2012). “Search” originally was tied to common-law trespass and involved some trespassory intrusion on property. See, e.g., Kyllo v. United States, 533 U.S. 27, 31-32, 121 S. Ct. 2038, 2042 (2001).
Davis makes no trespass claim, nor could he.
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C. Third Party’s Business Records
In subsequently applying Katz’s test, the Supreme Court held—in both United States v. Miller and Smith v. Maryland—that individuals have no reasonable expectation of privacy in certain business records owned and maintained by a third-party business.
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In Smith, the Supreme Court decided that “a different constitutional result is [not] required because the telephone company has decided to automate.” Id. at 744-45, 99 S. Ct. at 2582. “The fortuity of whether or not the phone company in fact elects to make a quasi-permanent record of a particular number dialed does not in our view, make any constitutional difference.” Id. at 745, 99 S. Ct. at 2583. The Supreme Court concluded: “[Smith] in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and … even if he did, his expectation was not ‘legitimate.’” Id.
E. Davis’s Case
Although Davis would have signed a contract when beginning service with MetroPCS, that
contract does not appear on this record to have been entered into evidence here. Thus we cannot consider it, or MetroPCS’s privacy policy, in this particular case.Based on the SCA and governing Supreme Court precedent, we too conclude the government’s obtaining a § 2703(d) court order for the production of MetroPCS’s business records did not violate the Fourth Amendment.
For starters, like the bank customer in Miller and the phone customer in Smith, Davis can assert neither ownership nor possession of the third-party’s business records he sought to suppress. Instead, those cell tower records were created by MetroPCS, stored on its own premises, and subject to its control. Cell tower location records do not contain private communications of the subscriber.
This type of non-content evidence, lawfully created by a third-party telephone company for legitimate business purposes, does not belong to Davis, even if it concerns him. Like the security camera surveillance images introduced into evidence at his trial, MetroPCS’s cell tower records were not Davis’s to withhold.
Those surveillance camera images show Davis’s location at the precise location of the robbery, which is far more than MetroPCS’s cell tower location records show. More importantly, like the bank customer in Miller and the phone customer in Smith, Davis has no subjective or objective reasonable expectation of privacy in MetroPCS’s business records showing the cell tower locations that wirelessly connected his calls at or near the time of six of the seven robberies.
As to the subjective expectation of privacy, we agree with the Fifth Circuit that cell users know that they must transmit signals to cell towers within range, that the cell tower functions as the equipment that connects the calls, that users when making or receiving calls are necessarily conveying or exposing to their service provider their general location within that cell tower’s range, and that cell phone companies make records of cell-tower usage. See In re Application (Fifth Circuit), 724 F.3d at 613-14. Users are aware that cell phones do not work when they are outside the range of the provider company’s cell tower network. Id. at 613.
Indeed, the fact that Davis registered his cell phone under a fictitious alias tends to demonstrate his understanding that such cell tower location information is collected by MetroPCS and may be used to incriminate him.
Even if Davis had a subjective expectation of privacy, his expectation of privacy, viewed objectively, is not justifiable or reasonable under the particular circumstances of this case. The unreasonableness in society’s eyes dooms Davis’s position under Katz. In Smith, the Supreme Court presumed that phone users knew of uncontroverted and publicly available facts about technologies and practices that the phone company used to connect calls, document charges, and assist in legitimate law-enforcement investigations. See 442 U.S. at 742-43, 99 S. Ct. at 2581. Cell towers and related records are used for all three of those purposes. We find no reason to conclude that cell phone users lack facts about the functions of cell towers or about telephone providers’ recording cell tower usage.
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G. Reasonableness
Even if this Court were to hold that obtaining MetroPCS’s historical cell tower locations for a user’s calls was a search and the Fourth Amendment applies, that would begin, rather than end, our analysis. Maryland v. King, 569 U.S. __, __, 133 S. Ct. 1958, 1969 (2013). The Fourth Amendment prohibits unreasonable searches, not warrantless searches.
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In sum, a traditional balancing of interests amply supports the reasonableness of the § 2703(d) order at issue here. Davis had at most a diminished expectation of privacy in business records made, kept, and owned by MetroPCS; the production of those records did not entail a serious invasion of any such privacy interest, particularly in light of the privacy-protecting provisions of the SCA; the disclosure of such records pursuant to a court order authorized by Congress served substantial governmental interests; and, given the strong presumption of constitutionality applicable here, any residual doubts concerning the reasonableness of any arguable “search” should be resolved in favor of the government. Hence, the § 2703(d) order permitting government access to MetroPCS’s records comports with applicable Fourth Amendment principles and is not constitutionally unreasonable.
