En banc 4th Circuit OKs tracking cellphone location without a warrant

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Eliminating a circuit split, the en banc 4th U.S. Circuit Court of Appeals on Tuesday reversed its own earlier decision by a three-judge panel and held that a warrant is not required for law enforcement to track location information for a subject’s cellphone.

Instead, a court order based simply on a showing of relevancy is all that is required to get information about the cell towers through which calls have been routed to and from the phone, according to Politico and the Wall Street Journal (sub. req.). A warrant requires a more stringent showing of probable cause.

This conclusion was mandated by U.S. Supreme Court precedent, which holds that information voluntarily provided to a third party lacks requisite confidentiality to require a warrant, the Richmond, Virginia-based court explained in its 12-3 opinion (PDF).

Hence, because cellphone users expect the service provider to route their phone calls through towers, the cellphone location information,—like hotel bills, credit card statements and social media account profiles—isn’t considered private.

“The Supreme Court may in the future limit, or even eliminate, the third-party doctrine. Congress may act to require a warrant for cell-site location information. But without a change in controlling law, we cannot conclude that the government violated the Fourth Amendment in this case,” the majority writes.

Attorney Meghan Skelton represented the defendants in the Baltimore case, which concerns a series of armed robberies.

“The court’s decision lets the government surveil every American cellphone user without a warrant. The Constitution requires the government to get a warrant before it can access this intimate information,” she told the Wall Street Journal after the ruling.

She said she intends to appeal the 4th Circuit decision to the U.S. Supreme Court. However, since all circuits that have ruled on the issue are now in consensus that cell tower information is not private, it is less likely that the nation’s top court will hear the appeal, the news articles note.

Related coverage:

ABAJournal.com: “No warrant is needed for records showing general location of prior cellphone calls, 5th Circuit says”

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