Earlier this month, I posted on a key developing issue churning its way through the the federal courts involving whether cell phone tower data can be secured by the government without first obtaining a search warrant. That piece can be found here: The Great Cell Phone Tower Data Debate Bound To Hit SCOTUS' Docket Soon – Are We Living In George Orwell's 1984?
A docket entry from the Eleventh Circuit Court of Appeals in USA v. Quartavious Davis revealed late last week that the stage is now set for en banc review of an earlier decision by a panel from the Eleventh Circuit in which the appellate court ruled that it was a constitutional violation to secure cell phone tower data without a search warrant. The docket entry confirmed that oral argument is scheduled for February 24, 2015 in Atlanta, Georgia. Numerous amicus briefs have also been filed in what seems to be a case ultimately headed for the United States Supreme Court.
The issue before the Eleventh Circuit could not be more relevant to the growing body of decisional law in this country on e-discovery issues. According to reporting by the American Civil Liberties Union, in 2010, the government obtained the cell phone location records — often referred to as tower data — from the cell phones of four people over a 67 day period in connection with an investigation into an armed robbery spree. Investigators did so without a search warrant. According to the ACLU, police got 11,606 location records from cell phone tower data for Mr. Davis over that period, resulting in his arrest on charges that he participated in the spree. Mr. Davis, 19 years old at the time, was convicted and ultimately sentenced to nearly 162 years in prison according to a 2012 profile of the case by the New York Daily News. A first time offender, he received what most consider was the stiffest penalty available under the law. If his conviction is not overturned, his sentence will amount to life in prison on the strength of what many observers believe was an unconstitutional warrantless search.
One of the most interesting aspects of this case involves just who has lined up (effectively behind Mr. Davis' position) as amicus in support of a warrant requirement for obtaining cell phone tower data. AT&T, one of the largest wireless providers in the United States, has submitted an amicus brief to the Eleventh Circuit. A copy of it is available from the ACLU's website, here. In a point similar to the one that I made in my earlier piece on this subject, AT&T's counsel frames its argument in response to the government's reliance upon the third party doctrine succinctly: "Nothing in Smith or Miller [the United States Supreme Court's third party doctrine jurisprudence] requires that individuals must choose between participating in the new digital world through use of their mobile devices and retaining the Fourth Amendment's protections." (AT&T's Amicus Br. at pp. 20-21).
The nation is watching USA v. Quartavious Davis. Supporters of one of the most basic Constitutional protections that underpin our democracy are hoping that the Eleventh Circuit calls check mate on warrantless cell tower data grabs, and creates the circuit split with an earlier ruling from the Fifth Circuit that would most likely advance this issue to the United States Supreme Court for an ultimate decision. Stay tuned.
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