Taking Warrantless Location Tracking to the Supreme Court

A petition submitted to the Supreme Court could settle a key question about the extent of our privacy rights in the digital age.

The ACLU, working with attorneys in Florida, has asked the court to take up Davis v. United States, a case involving warrantless government access to a large volume of cell phone location information. At stake is the continuing vitality of the Fourth Amendment.

After suspecting Quartavius Davis of participating in robberies in the Miami area in 2010, a federal prosecutor obtained 67 days’ worth of Davis’ cell phone location records from his cellular service provider with a simple court order – but without a warrant based on probable cause, as is required under the Fourth Amendment. The records turned out to contain a staggering 11,606 separate location points showing where he was at the start and end of calls — an average of one location point every five-and-a-half minutes, assuming Mr. Davis slept an average of eight hours a night.

As we have previously explained, the records revealed a great deal of sensitive information. Even though many of the data points identified Mr. Davis’s general location rather than his precise coordinates, they let police chart his location and movements in nearly minute-by-minute detail, revealing to officers such private facts as which nights he slept at home and which he spent elsewhere. Analysis of similar records in other cases has revealed when people were at church or the doctor’s office.

A three-judge panel of the Eleventh Circuit Court of Appeals initially held last year that the government violated the Fourth Amendment by obtaining Mr. Davis’ historical cell phone location records without a warrant. After the government petitioned for rehearing, a majority of the full en banc Eleventh Circuit reversed, holding that the Fourth Amendment does not protect this location data. The court accepted the government’s argument that cell phone users lose their privacy interest in their location data merely because their phone company has access to it.

In reaching that conclusion, the Eleventh Circuit relied on Supreme Court cases from the 1970s that held that certain limited information that people voluntarily share with third-party businesses can be accessed by law enforcement without a warrant. But the logic behind those precedents, known collectively as the “third-party doctrine,” has not held up well in the digital age. As we argue to the Supreme Court in our petition for review of the Eleventh Circuit’s decision:

It is virtually impossible to participate fully in modern life without leaving a trail of digital breadcrumbs that create a pervasive record of the most sensitive aspects of our lives. Ensuring that technological advances do not ‘erode the privacy guaranteed by the Fourth Amendment’ requires nuanced applications of analog-age precedents.

People should not have to choose between giving up their cell phones and giving up their Fourth Amendment rights. Indeed, courts are beginning to agree: Just this week, a federal court in California held that police need a warrant to obtain historical cell phone location records.

But not all the lower courts are in agreement. The disappointing en banc decision in May by the Eleventh Circuit, which covers Florida, conflicts in principle with last year’s strong ruling by the Florida Supreme Court, which decided that real-time cell site location information is also protected by the Fourth Amendment. We hope the Supreme Court takes this opportunity to settle the question once and for all, and make clear that the warrant requirement of the Fourth Amendment applies to searches of sensitive digital records held by a trusted service provider, just as it does to the private papers in a person’s home.

The ACLU and ACLU of Florida are co-counsel in the case with attorneys David Oscar Markus and Jacqueline Shapiro. Documents from the case are available here.

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Ms. Eurdis B. G...

What about COINTEL Tactics and all they employ, doctor documents, records, everything under extremely false pretenses?
What about "America" being a Corporation, lost its soverienty since the last bankruptcy during the Roosevelt Depression in 1938 right before WWII and the 9/11 Patriot Act, secret laws and interpretations?

It is a program alright, but it is not a good one for us humans here, not just in the United States. If we can't get to the truth or speak the truth we are doing their biding and are worse than merely than chasing our own tail.

Eurdis Benita G...

1. 9/11 Patriot ActAct
2. United States of America is a Corporation owned by Internationals Banks and administered through the United Nations.
3. Joann Spotted Bear, pure aboriginal Native American (North America) has submitted over 4000 documents to the NYC branch of the United Nations stating the America is a "Corporation" and that the many "Treaties" have been broken by the U.S. Corp owing the (North American) Native Americans in the trillions. Hence proving there is a problem with the laws making just about everything null and void, making our government about a "Misrepresentation, misleading and false representation." This is not a real government and do not prepresent the people and barely protect them. And if they do protect you, it is for false reasons and for their own agenda and not for the people they gave a "Sworn Oath to protect and to defend."

5. NSL letters they never admit to and stay with you for life just because you are boyfriend, girlfriend, wife or whatever.
Using,"Synthetic Telepathy and Mind Psy Ops" tech for their supposed, "Surveillance." Breaking into bank accounts, email accounts, COINTELPRO, taking photos of you at hospitals, photos shoping them in order to set you upup. Causing race wars. Falsifying records in hospitals, doctors offices using badge in order to get them to lie for our government agencies, blackmailing these same medical facilities and people if they don't keep quit or keep it a secret while getting these same people to break the laws for them while using our medical insurance to pay for it all.

6. I have a problem with COINTELPRO using children, babies and anyone under 18 for their set-up, COINTELPRO Gang Stalking, Street Theater, real gangs or illegal immigrant children or illegal adults for that matter

Anonymous

They track my phone because I am the parent of a suspect. I know this because they call me when they can't reach him (he has an ankle bracelet, and ask me to give him the phone. They've asked him to step outside to better track it. They've called when I am out of town and they can't reach him so how does that Not violate my rights?

Anonymous

They track my phone because I am the parent of a suspect out on recognizance. When they can't ping him they call my cell and ask me to give it to him. They've even asked that he step outside so they can track better. They've called when I am out of town. How does this Not violate MY rights?

Anonymous

Want to know what it means if you goto a hospital and say that you are having"Suicidal Ideation (walkin) or attempt (call 911 w/cops & they erase the records) and then the COINTEL PRO Psy Op sends you to a board and care then designating you as a 51/50?????

Victim of the 11 th

The Eleventh Circuit is always behind the times, and invites strong rebuke from the Supreme Court, this years case of a Cortez fisherman "fish story", 2014 confronting witness, "what's a house boat" 2013, Obama care, shows the Eleventh Circuit wouldn't understand the fourth Amendment if lady liberty sat in the lap of each of the "en banc" judges, and slapped each one of them in the face with the Constitution, they love their corrupt law enforcement!

Plaintiff

Elkins v FAA, 1:14-CV-001791, US District Court, District of Columbia,/ Exemption shopping / DOJ interference with a regulatory decision making for FOIA request / FAA 2008 Exemption 7(E) dropped, "We feel it's "High 2" / 2013, "We feel it's Exemption 7(A)", No it's exemption 7(E),2015, No it's exemption 7(A), 7(E), On going National Security Investigation, Oops! We made a mistake, We feel it's now Exemption 1, Classified Information, We need more Exemptions, if we had only told the truth from the beginning!

Anonymous

If you are being tracked they show up whever you go...meaning FLO officers (Meter readers, ambulance, fire, police. DHS didpatches them. They train and equip them. They harass and track targets. Targets get the psychiatric reprisal if they complain. They get a false diagnosis which shuts them up.

Anonymous

I am current going through this, I never heard of this until now. What can I do?

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