On May 31, 2016, the U.S. Court of Appeals for the Fourth Circuit held in United States v. Graham, Nos. 12-4659 and 12-4825, in an en banc rehearing, that the government’s acquisition of historical cell-site location information (“CSLI”) from a cell phone service provider without a warrant did not violate the Fourth Amendment. The majority opinion noted that “Supreme Court precedent mandates this conclusion,” relying on a rule known as the “third-party doctrine.” Under the third-party doctrine, an individual enjoys no Fourth Amendment protection for information the individual voluntarily turns over to a third party. The May 31, 2016 opinion, decided by a 12-3 margin, comes after the Fourth Circuit granted the government’s motion for a rehearing en banc and thus reversed and vacated the August 5, 2015 panel opinion in which the panel had concluded that the government’s warrantless procurement of CSLI was an unreasonable search in violation of the defendants’ Fourth Amendment rights.

During the government’s investigation, that eventually led to convictions of the defendants in underlying proceedings, it obtained historical CSLI from the defendants’ cell phone service provider. CSLI identifies the cell towers used for transmission when a cell phone is used to make or receive calls or texts. Because the cell tower used is usually the one closest to the applicable cell phone, the government used CSLI to place the defendants in the vicinity of certain armed robberies.

Although the government obtained a federal court order directing the service provider to disclose the records, the government did not obtain a warrant. Pursuant to the Stored Communications Act (“SCA”), the government obtained the order by demonstrating “specific and articulable facts showing that there are reasonable grounds to believe that . . . the records . . . are relevant and material to an ongoing criminal investigation.” The defendants argued that through such means, the SCA permits the government unconstitutionally to collect their private information in by violation of the Fourth Amendment.

The en banc Court rejected this position and emphasized that when an individual voluntarily gives information to a third party, the individual has “no legitimate expectation of privacy” and therefore enjoys no Fourth Amendment protection when the government obtains that information from the third party. The Court reasoned that CSLI is conveyed voluntarily because “[a] cell phone user voluntarily enters an agreement with his service provider in which he knows that he must maintain proximity to the provider’s cell towers in order for his phone to function. Whenever he expects his phone to work, he is permitting – indeed, requesting – his service provider to establish a connection between his phone and a nearby cell tower. A cell phone user thus voluntarily conveys the information necessary for his service provider to identify the CSLI for his calls and texts.”

Therefore, the Court held that the government’s acquisition of CSLI did not violate the Fourth Amendment because it was bound by the third-party doctrine. The Court also noted, however, that in the future, the Supreme Court could limit or eliminate the doctrine, and that Congress could also amend the SCA to require a warrant for CSLI.

Reporter, Stephen R. Shin, New York, +1 212 556 2198, sshin@kslaw.com.