March 17, 2017–A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit (San Francisco) today grilled attorneys on both sides of a case into whether the Fourth Amendment requires law enforcement officers to show probable cause and obtain a warrant to get historical cell-site location data for an individual’s cellphone.

In the case (“U.S. v. Antonio Gilton et al.”; no. 16-10109) a judge in the U.S. District Court for the Northern District of California before trial agreed to suppress cell-site location records obtained from Sprint Corp. for a defendant in the killing of an alleged pimp, Calvin Sneed, who was in a relationship with Antonio Gilton’s younger sister, identified only as L.G. Police suspected the Gilton family in the killing, and they obtained from a magistrate judge historical cell-site information for phone numbers of Mr. Gilton and his brother Barry.

The district court judge suppressed the evidence because the government did not demonstrate probable cause concerning Mr. Gilton’s cell-site location information. The judge also said a warrant is necessary because people have a reasonable expectation of privacy concerning their historical cell-site location information.

The Justice Department argued that the cell-site location information did not belong to Mr. Gilton, that Mr. Gilton had conveyed the location information to Sprint, and that he did not have a reasonable expectation of privacy concerning the data. It also pointed out that the Fourth, Fifth, Sixth, and 11th circuits have ruled that historical cell-site information can be obtained without a warrant showing probable cause. The government also said that the search for the data was reasonable because the Fourth Amendment under the Stored Communications Act’s subpoena standard only mandates “reasonable grounds” leading authorities to believe that the records are “relevant to an investigation.” The lower court erred when it said the affidavit used to obtain the warrant needed to establish that the records supported that Antonio Gilton took part in the shooting, the department said, adding that the affidavit only needed to establish probable cause that the cell-site records provided information about the identities of anyone involved in the crime.

The government also said that even if the warrant was not properly granted with adequate probable cause, officers relied in good faith on it. But an attorney for Mr. Gilton and a coalition of civil liberties groups that filed a brief supporting Mr. Gilton argued that the district court correctly concluded that people have a reasonable expectation of privacy in historical cell-site location information and that a search warrant based on probable cause is necessary to obtain such data. The third-party doctrine does not apply in this case because cellphone subscribers don’t voluntarily convey their location to wireless carriers, they said. They also said that the good-faith exception to the Fourth Amendment does not apply because the affidavit was deficient.

During this morning’s oral argument, judges had tough questions for all three attorneys. Jenny Ellickson, an attorney for the Justice Department, said that cellphone users such as Mr. Gilton know that carriers find the location of their users in order to transmit the calls they make or receive. She said they have no reasonable expectation of privacy.

But Judge Jay S. Bybee noted that such technology “will tell us your every moment for 24 hours a day – at least where your phone is 24 hours a day.”

Ms. Ellickson said the granularity of the information is not related to whether the third-party doctrine applies.

Judge M. Margaret McKeown said cellphone users don’t know how precisely they can be tracked. “Given the differences in what’s happened in the digital world, how can you say that this information is voluntarily conveyed?” she asked. The judge also asked whether Sprint made clear in its terms and conditions that it might share location information.

Ms. Ellickson pointed out a footnote in the government’s brief that said “Sprint expressly advised its subscribers (including Antonio Gilton) that location data was stored and shared with law enforcement.” She said the data that the district court ordered suppressed were records of calls made and received. She also said the magistrate judge had a substantial basis for finding probable cause concerning Mr. Sneed’s killing. She cited “inferences” that the magistrate could draw from the affidavit.

But Judge Bybee said, “This warrant lacks quite a bit.” Even without probable cause, the good-faith exception can be relied upon, Ms. Ellickson argued.

Nathan Freed Wessler, a staff attorney with the American Civil Liberties Union’s Speech, Privacy, and Technology Project, told the judges, “This case presents the court with the pressing question of whether the warrant clause of the Fourth Amendment is to maintain its vitality in the digital age. Here, the government violated Mr. Gilton’s reasonable expectation of privacy under the Fourth Amendment when it collected nearly 9,000 data points on his location and movements over a 37-day period without a valid search warrant.”

But Senior Judge John C. Wallace said, “We seem to be divided in our circuit” on whether a warrant based on probable cause is required to collect historical cell-site location information. He also noted that the four other circuits have ruled that such warrants are not needed. “There seems to be a swelling against your position,” Judge Wallace told Mr. Wessler. “In our circuit, we have held that we don’t create a circuit split unless there’s a compelling reason to do so. It puts the burden on you to say why this is compelling, when the majority of the district courts have gone against you, [and] when all of the court of appeals have gone against you.”

Mr. Wessler said that in the four circuits that have ruled on the issue, there were a total of 18 majority, dissenting, and concurring opinions.

Judge Wallace also said information sent to a bank would also fall under the third-party doctrine and thus people would not have a reasonable expectation of privacy even though they might think it’s private.

Mr. Wessler suggested that the location information in this case is so sensitive that it should be protected by a warrant requirement. He also said that in this case, while “we don’t have the contents of the phone calls … this kind of pervasive, long-term location information is closely analogous to content information in the very detailed picture of a person’s life that it paints.”

Judge Wallace noted that courts have ruled that sensitive pen register information, including the location of callers, has been deemed by courts to not be subject to a reasonable expectation of privacy. “I think the pen register cases are very strong against you on this issue,” he said.

Referring to the third-party doctrine, Mr. Wessler said, “The Supreme Court has cautioned courts not to over-read pre-digital precedents applied to newer, pervasive, or very sensitive digital records.”

The amici curiae brief filed by the ACLU was also signed by the Brennan Center for Justice, the Center for Democracy & Technology, the Electronic Frontier Foundation, the National Association of Criminal Defense Lawyers, and the New America Foundation’s Open Technology Institute.

Mark Goldrosen, an attorney for the defendant, said the magistrate judge was wrong to issue a warrant for his client’s records because he was only mentioned three times in the affidavit in “fairly innocuous” references. He suggested that the “clear error” threshold had been met in the granting of the warrant.

“There is no plausible connection between the killing of Mr. Sneed and anything that would be in Mr. Antonio Gilton’s cell-site location data,” he added. But Judge Wallace didn’t seem to buy that argument, saying that “clear error” was a high bar to clear. – Paul Kirby, paul.kirby@wolterskluwer.com

Courtesy TRDaily