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11th Splits With 5th: Privacy Interest in Cell Location Data

By William Peacock, Esq. on June 13, 2014 | Last updated on March 21, 2019

Fun fact: if your cell phone is turned on, your phone carrier can tell where you are.

How? Your phone's radio is constantly connecting to cell phone towers, which means even without a GPS signal, the carrier can approximate your location. You may have already know this (it shows up in movies all the time), but if you didn't, well, you do now. What you probably didn't know is that it might be legal for the police to snatch this data without a warrant.

Unless you reside in the Eleventh Circuit.

Circuit Split

Let's start with the all-too-predictable facts: Quartavious Davis was suspected of helping with a series of robberies, the police obtained 11,000 location records from his cell carrier without a warrant, and these were used to tie him to the locations of the robberies. End result: a 162-year sentence.

Last year, the Fifth Circuit held that these types of requests were perfectly permissible under the "third-party doctrine." But this week, the Eleventh Circuit held to the contrary, though thanks to a good-faith exception, Davis is still staring at his lengthy sentence.

Why the split? The Eleventh Circuit, in a muddled opinion, held that individuals have a privacy interest in location data:

"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."

The panel relied heavily on a four-judge Supreme Court concurrence from 2012 in United States v. Jones, which held that continual GPS monitoring, once enough data is collected, constitutes a search under a "mosaic theory." One point isn't enough, but if you track someone long enough, you get a picture of one's life.

The panel noted that this is even more egregious, as unlike a car, one's phone is with them at all times -- and thus, a single cell location point should be even more protected. (Why this was necessary to the panel's opinion is a mystery, as the police had 11,000 data points in Davis, which is surely enough to trigger the mosaic theory.)

Is it Correct?

Under the "third-party doctrine," as it currently exists, it's certainly questionable. The Fifth Circuit, in a similar case, held the exact opposite under the theory advanced by the government here: a person transmitting their location to their cell phone provider is giving that information to a third-party.

This theory is based on the Supreme Court's long-standing Smith v. Maryland (1979) precedent, which governed telephone users transmitting phone numbers to phone companies. The third-party doctrine has been invoked in defense of NSA data collection to mixed results. Here, the panel distinguished Smith, noted that dialing a number is voluntary, while most people have no idea that their cell is constantly broadcasting their location to nearby towers.

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