Why the Police Can Get Your Location From the Phone Company Without a Warrant

Recently, the 11th Circuit changed its mind, reversed its prior ruling, and found that police do not need a warrant to get location data from your mobile phone carrier regarding your past locations. The specific case (United States v. Davis) involved a guy who was suspected of robbing a bunch of places with several other people. Among other evidence, the police obtained phone records showing that members of the conspiracy placed calls near the locations that were robbed at the time that those locations were robbed. Police obtained this evidence without a search warrant or a showing of probable cause. Some people have been upset or confused by this decision. A good example of that is the Young Turks coverage of the story. Another example is the kid in the comments section of that video who called me a "whimsical kraut" and expressed his admiration for the Cambodian genocide of intellectuals while expressing his desire to either strangle me or have me shot dead outside of my school. I took that as a compliment (he thinks I'm an intellectual!), and I am thinking about changing the name of this blog to "The Whimsical Kraut". We'll see. Anyway, I have studied this area of the law particularly closely, so I thought I'd explain the basics of the decision, why the law is the way it is, and correct some misunderstandings.

The most important thing to understand is that the root of the problem is our insistence on using a document that was created before the advent of the telegraph to decide privacy rights in cyberspace. If you take a step back, it's a comically absurd situation. When we want to know what our privacy rights should be we consult the thoughts of a group of men who thought slave holding made sense and leeching was a valid medical treatment for almost any illness. However, until a large enough group of people yell out that the emperor has no clothes, this is the situation we're stuck with.

Not only is the Constitution old, but it is also very poorly written. The relevant language of the Fourth Amendment states that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The problem is, this tells us HOW to get a warrant, but it does not tell us WHEN to get a warrant. Oops. That's a pretty important point. Several Supreme Court Justices, including current ones like Justice Scalia and Justice Thomas, believe that if police are not committing a physical trespass, they don't need to get a warrant at all. Ever. And the language of the Amendment allows for that. Actually, it allows for searches without ever having probable cause so long as the search is done without a warrant. Nonetheless, the consensus of the Court has been for awhile that searches are presumed to be unreasonable if they are done without a warrant supported by probable cause (a rule into which they have carved roughly six million exceptions). That makes sense. Now, however, we must define what a "search" is.

The Supreme Court has decided in Katz v. United States that searches only occur when the police are attempting to access information in which the suspect has a reasonable expectation of privacy. For example, if the police see you out in your front yard smoking opium, they do not need a search warrant before they can look at you doing so because it's not reasonable to expect privacy in what you are doing in your front yard. The Court ran into a trickier case when it had to deal with the issue of police informants and undercover officers. If I tell an informant something, can the police access that information without a warrant? Well, if I have a reasonable expectation of privacy in that information, then no, they can't. The Court responded to this question by holding that information divulged to a third party is no longer reasonably private (even if that person swore a blood oath to me never to tell another soul and given his first-born son as collateral on that promise). At the time, this was an expedient way to preserve the practice of using informants. Without this ruling, investigating organized crime would become nearly impossible. How could the police ever get probable cause for a search warrant if they couldn't infiltrate these organizations or flip underlings for information about the activities of the men in charge?

The problem, however, is that almost everything we do online or on our phones results in information being divulged to a third party whether a phone company, an internet service provider, or a social media platform. Therefore, the third-party doctrine (as it's known in legal circles) has basically eliminated the warrant requirement in cyberspace. That's a problem. Most people who send e-mails think those e-mails are private, and in my opinion rightfully so. Just because I tell one person something doesn't mean I should expect the police to figure it out. Nonetheless, so far the Court has maintained the third-party doctrine with respect to phone numbers dialed and bank records, and lower courts have applied it to data on the Internet. There are reasons to think that some of the justices (most notably Justice Sotomayor) are ready to change the law, but when that will happen or how it will happen is up in the air. I have written an idea for reform with respect to social media platforms, but there are many other instances where these conflicts occur like cell phone data or GPS tracking with satellites. It is hard to figure one rule to both protect reasonable privacy without unduly hampering law enforcement investigation of sophisticated criminals who may conduct their entire operations through third parties.

So that's the current law, and the 11th Circuit decided Davis correctly based on that law (I'll omit discussion here of the weird and unnecessary tangent they went into regarding reasonable privacy expectations outside of the third-party doctrine).

The best solution to this and many other issues that I will write about in this space is to amend the Constitution or throw it out and write a new one that bears some relation to our modern reality and isn't written so poorly that it would generate malpractice suits if it were written in our time. It's unlikely that will happen so it will be interesting to see what the Supreme Court does with all of these cases in the coming years.