MetroPCS’s records included all the calls Davis made and received as well as the location of the cell towers that handled those calls. The cell tower information put Davis close to the scene of each robbery and, based in part on this evidence, he was convicted. Davis appealed that conviction on the ground that the state’s discovery of his cell phone records was an unreasonable search and seizure prohibited by the Fourth Amendment.
Discovery of Cell Phone Records Not a “Search”
The appellate court affirmed Davis’s conviction, holding that an order compelling business records from a cell service carrier is not a “search” of the cell phone user. The appellate court found that Davis did not have a reasonable expectation of privacy over those records, partly because they were business records in the custody of a third party. The appellate court also noted that it was the cell service company—not the government—that actually collected the information about Davis’s calls. “The court was correct that the records produced belonged to MetroPCS, not Davis,” observes Emily Crandall Harlan., Washington, D.C, vice chair of the ABA Section of Litigation’s Criminal Litigation Committee. “In fact, Davis did not have the information the government sought, and could not have produced those documents even if he had been ordered to do so,” notes Crandall Harlan.
But since cell service providers aggregate and store the vast output of our modern communications, characterizing such information as being collected and held by a third party may place form over substance. “If information is never private solely because it passes through a third party, then the government will be able to get virtually anything it wants,” warns Dawn M. Du Verney, Philadelphia, PA, cochair of the Section of Litigation’s Criminal Litigation Committee.
“Non-Content Data” Can Be Revealing
The appellate court also emphasized that MetroPCS’s documents only allowed the state to prove the location of the cell towers that received and directed Davis’s calls, not his precise location or that of his cell phone. The appellate court opined that society would probably not generally recognize an expectation of privacy over documents that do not reveal the content of cell phone communications or the exact location of the user. This conclusion may conflict, however, with other recent cases that recognize privacy interests in cell phone metadata.
In ACLU v. Clapper, for example, the U.S. Court of Appeals for the Second Circuit recently invalidated the National Security Administration’s cell phone surveillance program implemented under Section 215 of the PATRIOT Act. This program involved the government’s ongoing collection of bulk telephone metadata created and stored by telephone companies. Although the Clapper court’s decision was based on the text of the statute rather than the Fourth Amendment, the court characterized those constitutional issues as “sufficiently daunting” to warrant a balancing of law enforcement objectives and personal privacy. Since the Clapper decision, Congress has allowed Section 215 to expire pursuant to the statute’s sunset provision.
In some circumstances, the “non-content” aspects of a communication can be revealing. “Even non-content data can provide a picture of someone’s life,” says Crandall Harlan. “For example, I could look in a person’s email inbox and learn something about his or her life based on sender and recipient information, all without knowing the content of any of the email messages,” she explains. This privacy concept may also apply to where a person is at any given time. “When the government has a record of your location, it may also have information that you want to keep private,” says Du Verney. “These types of locations could include, for example, a place of worship or certain group affiliations,” she notes.
Because cell phone records can provide location information about the user, disclosure of this information should be treated with particular care. “Disclosing any information about a call other than the number called, including your location when you made it, would go too far,” opines Du Verney.Other decisions more protective of privacy interests “hopefully will tame the government’s wild, wild west approach to gathering everything from everybody,” Du Verney concludes.
Daniel P. Elms is a contributing editor for Litigation News.