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Cell Phone Location Data Isn't Private, Federal Appeals Court Rules

By Ephrat Livni, Esq. on June 02, 2016 | Last updated on March 21, 2019

Your phone says a lot about you, or it can if authorities review your location data over an extended period of time. That is why privacy advocates believe it constitutes a search under the Fourth Amendment of the Constitution and that a warrant should be required for phone location information.

But this week a federal appellate court in Virginia ruled 12-3 that no warrant is needed because consumers have no reasonable expectation of privacy in information they willingly surrender to cell phone companies, reports The Intercept. The issue may still make its way to the Supreme Court eventually and some experts expect the strong dissent in this case and others like it indicate there is hope yet for privacy.

Location Data

Cell phone location data collected over time shows all the places you go and with what frequency. For law enforcement authorities investigating a suspect this information is revealing and they don't want to have to seek a warrant for the information, which can be obtained from cell phone companies. The argument is that this telling data is willingly surrendered by cell phone users who thus have no reasonable expectation of privacy.

The latest ruling out of Virginia agrees with this view. The majority opinion written by Judge Diana Motz states, "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].'" Motz cited a 1973 case to support this conclusion, which is precisely the problem with the ruling, according to the dissent.

Dissenting Opinions

The three dissenters believe that we need to think differently than we did in 1973 in light of how drastic technological changes have transformed our lives. "Only time will tell whether our society will prove capable of preserving age-old privacy protections in this increasingly networked era. But one thing is sure: this Court's decision today will do nothing to advance that effort. I dissent," Judge James Wynn wrote on behalf of the opposition.

Still, some experts say that the issue will makes its way to the Supreme Court for review and that it's not clear the high court will conclude like the Virginia majority did this week. Nate Wessler, a staff attorney with the American Civil Liberties Union said that the dissenting opinions in this case and others are meaningful. "That in itself," he said, "is a very strong message to the Supreme Court."

If the high court hears that message and decides to consider it, the fate of warrantless location data is up in the air. Orin Kerr, a law professor at George Washington University Law School, told The Intercept, "I think the 4th Circuit correctly applied Supreme Court law. But that doesn't tell us what the Supreme Court might do."

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