U.S. v. GRAHAM, NO. 12-4659

Decided: May 31, 2016

The Fourth Circuit affirmed the district court’s decision.

In 2015, a panel of the Fourth Circuit affirmed convictions of defendants Aaron Graham and Eric Jordan related to their part in a series of armed robberies. During the defendants’ trial, the government used historical cell-site location information (“CSLI”) obtained from the defendants’ cell phone provider to place the defendants in close proximity of the armed robberies whilst they occurred. Historical CSLI provides location information by indicating which cell tower, typically the tower closest to the cell phone, transmitted a signal when a cell phone is used to make and receive calls or texts. The panel majority instructed that going forward, a warrant backed by probably cause is necessary to obtain such data from cell phone providers. The government moved for rehearing en banc, which was granted. The panel opinion was vacated, and the Fourth Circuit now considers whether the government violates the Fourth Amendment where it obtains historical CSLI from a service provider without first obtaining a warrant supported by probable cause.

The defendants asserted that the provision of the Stored Communications Act (“SCA”), 18 U.S.C. § 2703(d), which allows the government to access non-content information upon the showing of “reasonable grounds to believe . . . the records . . . are relevant and material to an ongoing criminal investigation,” allows the government to unconstitutionally obtain private records, the Fourth Circuit indicated that this argument does not take into consideration the nature of the government’s activity in the present circumstances, which involves the obtaining of records from a third party provider rather than direct government tracking.

Instead, the issue at hand, according to the Fourth Circuit, is to be resolved by the third-party doctrine set forth by the Supreme Court in United States v. Miller and Smith v. Maryland, which states that no individual is privileged with a “legitimate expectation of privacy” in information voluntarily conveyed to a third party. Under this doctrine, the Fourth Circuit held that the defendants lacked a rational expectation of privacy in the historical CSLI obtained from their cell providers. As pointed out in the opinion, this position is supported by the holdings of three sister courts—the Sixth Circuit in United States v. Carpenter, the Eleventh Circuit in United States v. Davis, and the Fifth Circuit in In re Application of U.S. for Historical Cell Site Data—as well as the conclusions of the majority of federal district court judges.

The defendants provided multiple arguments as to why the third-party doctrine does not apply to the present case, all of which the Fourth Circuit rejects. First, the defendants assert “that cell phone users do not convey CSLI to phone providers, voluntarily or otherwise.” However, the Court instead found that a user does convey to their provider the location of the cell tower to which their phone connects any time the user utilizes the provider’s network, because the provider can only receive such information when a cell phone exchanges signals with a particular cell tower, typically the nearest available tower.

The defendants further argue that “a cell phone user does not actively choose to share his location information,” and consequently the third-party doctrine does not apply to historical CSLI. The Fourth Circuit sees this as an attempt to redefine the third-party doctrine, as no such rule is found in either Miller or Smith.

Finally, the defendants’ final argument relies on the idea that the use of cell phones is so ever-present in current society that individuals are forced to either risk producing CSLI or withdraw from modern society. However, the Fourth Circuit explains that dissenting justices in Miller and Smith tried and failed to push very similar concerns. Further, the defendants support this argument with cases that focus on the protection of the content of communication, but as the Fourth Circuit indicates, CSLI is classified as non-content information, and as such, the cases relied on by the defendants are not applicable to the present issue.

Judge Wilkinson concurs with the majority, but writes a separate opinion “to emphasize [his] concern that requiring probable cause and a warrant in circumstances such as these needlessly supplants the considered efforts of Congress with an ill-considered standard of [the Fourth Circuit’s] own.” According to Judge Wilkinson, the defendants’ attempt to inject their own interpretation of the Fourth Amendment into the SCA through the use of a warrant and probable cause requirement seeks to overturn Supreme Court precedent and abandon Congress’ efforts to balance privacy and law enforcement interests.

Judge Wynn, joined by Judges Floyd and Thacker, dissent in part and concur in the judgment. According to several cases from the Supreme Court, Judge Wynn writes, “voluntary conveyance” is defined by the defendant both knowing of particular information and acting in some way to communicate that information. Under this definition, the cell phone users do not “voluntarily convey” because they lack sufficient knowledge and awareness of their CSLI and CSLI is automatically generated by the provider’s network, rather than by a particular action of the user, and thus the third-party doctrine alone fails to answer whether the government violated the Fourth Amendment. Instead, Judge Wynn concludes that it is the substantial amount of information gathered in this case that clearly evidences that the government has engaged in a search and has violated the Fourth Amendment by engaging in such without a warrant.

Accordingly, the Fourth Circuit affirmed the judgment of the district court in all aspects, with Judge Wilkinson concurring, and Judge Wynn, joined by Judges Floyd and Thacker, dissenting in part and concurring in the judgment.

Full Opinion

Charlotte Harrell

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