By Andrew H. Fuller
Last Monday (Nov. 9), the Supreme Court of the United States declined cert to petition Davis, Quartavius v. United States. The case focused on whether the police must obtain a warrant in order to access and review cellphone location data held by carriers. In brief, Davis was convicted of several counts of robbery based on evidence that was largely constructed from cellphone location data the state obtained from Davis’s mobile carrier, MetroPCS, without a warrant. Of particular concern to both Davis and privacy advocates was the data regarding the cell tower locations that Davis’s phone connected to at certain dates and times. The Eleventh Circuit held that Davis did not have a privacy interest in the historical cell site location data and therefore no warrant was necessary.
The State argues that the cell site location data is not constitutionally protected by the Fourth Amendment because it is a business record of the wireless carriers. Davis claims, with support from privacy advocates, that he has a privacy interest in the data collected from MetroPCS that is, or should be, protectable under the Fourth Amendment. This case has been closely tracked by privacy advocates, the Electronic Frontier Foundation (EFF), for example, who hoped to see the Court reverse the 11th Circuit’s ruling against Davis. EFF’s Senior Staff Attorney Hanni Fakhoury said that “[i]t’s time for law enforcement to recognize that Americans’ physical location information is sensitive, and private, and protected by the Fourth Amendment’s guarantee against unreasonable searches and seizures . . . [and that] . . . [c]ell phones are an integral part of modern life and carry detailed information about where we go and when we travel. Many federal and state courts have already ruled that cell site information is protected under the Fourth Amendment. We are urging this country’s highest court to afford all Americans this important protection from law enforcement unless there’s a search warrant.”
The Supreme Court’s decision to dodge the question comes as a surprise to many who are not paying close attention. Until late October, there was a circuit split on the issue thanks to the Florida Supreme Court’s, and subsequently the Fourth Circuit’s, opinion in United States v. Aaron Graham. However, the Fourth Circuit recently granted a rehearing in that case and thus removed the immediate need for the Supreme Court to resolve the question. This is unfortunate, as the Supreme Court missed an opportunity to clarify the currently confusing landscape regarding cell phones and the Fourth Amendment. Last year the Supreme Court held in Riley v. California that police needed to obtain a warrant before searching the contents of a cell phone. This author believes that a natural extension of that logic would suggest that not only is the data stored on the phone protectable (under Riley), but that the data the phone itself generates is similarly protectable. Almost certainly the court will have to address this issue – but apparently not quite yet.
Image source: Washington Post.
Washington Journal of Law, Technology & Arts 
