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BALTIMORE, MD - In a decision that fills in an important gap in Maryland law, and increases the possibility that the Supreme Court may take up the issue of warrantless phone tracking, the 4th U.S. Circuit Court of Appeals ruled yesterday that the Fourth Amendment requires law enforcement to obtain a warrant before seeking a person's historical cell phone location information, at least over an extended period, from that person's cell phone company.
In the case, United States v. Graham, the government obtained 221 days, or seven months, of historical cell phone location data for two suspects using a court order that allows police to obtain information "relevant" to a criminal investigation, instead of a warrant based on probable cause. For one suspect, Aaron Graham, the records included 29,659 separate location data points, revealing countless private details of his movements and activities.
"The court's opinion is a full-throated defense of Fourth Amendment privacy rights in the digital age. Cell phone location records can reveal some of the most private details about our lives by showing where we go and who we spend time with," said Nathan Freed Wessler, staff attorney with the ACLU Speech, Privacy, and Technology Project. "Requiring a warrant for access to this information is an important protection against unjustified government intrusions."
The 4th Circuit's opinion holds that this information is protected by the Fourth Amendment because it can reveal private details of movements over time and locations inside of homes and other constitutionally protected spaces. The court rejected the government's argument that people give up their privacy rights in this information because their cell phone companies have access to it. "People cannot be deemed to have volunteered to forfeit expectations of privacy by simply seeking active participation in society through use of their cell phones," the decision reads.
The Fourth Circuit decision reaches the opposite conclusion from the 5th and 11th Circuit Courts of Appeals, which have held that the Fourth Amendment does not protect cell phone location information from warrantless search. Just last week, the ACLU, along with attorneys in Florida, filed a petition with the Supreme Court seeking review of the 11th Circuit's opinion in United States v. Davis.
Yesterday's opinion also fills in a significant gap in Maryland law. In 2014, the ACLU of Maryland proposed a bill to require warrants whenever law enforcement sought to track a person's location using an electronic device. The bill that ultimately passed and was signed into law, however, required a warrant only for "real time" location tracking, and did not address whether a warrant was necessary when the government seeks location tracking information about past movements. Yesterday's decision means that a warrant will be required in Maryland in all cases where law enforcement seeks extended location tracking information.
"The Fourth Circuit's historic ruling ensures that Marylanders can use their cell phones secure in the knowledge that they are not paying to carry around sophisticated government tracking devices," said David Rocah, Senior Staff Attorney for the ACLU of Maryland. "The ruling also fills in a significant gap in protecting Marylanders' right to be free from unwarranted government tracking."
The ACLU, the ACLU of Maryland, Center for Democracy & Technology, Electronic Frontier Foundation, and National Association of Criminal Defense Lawyers filed an amicus brief in U.S. v. Graham.