ON REHEARING EN BANC
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4659
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AARON GRAHAM,
Defendant - Appellant.
------------------------------------
ELECTRONIC FRONTIER FOUNDATION; NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS; AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF MARYLAND; CENTER FOR DEMOCRACY & TECHNOLOGY;
AMERICAN CIVIL LIBERTIES UNION FOUNDATION; DOWNSIZEDC.ORG;
DOWNSIZE DC FOUNDATION; GUN OWNERS FOUNDATION; GUN OWNERS OF
AMERICA, INC.; INSTITUTE ON THE CONSTITUTION; REPORTERS
COMMITTEE FOR FREEDOM OF THE PRESS; UNITED STATES JUSTICE
FOUNDATION; CONSERVATIVE LEGAL DEFENSE AND EDUCATION FUND,
Amici Supporting Appellant.
No. 12-4825
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC JORDAN,
Defendant - Appellant.
------------------------------------
ELECTRONIC FRONTIER FOUNDATION; NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS; AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF MARYLAND; CENTER FOR DEMOCRACY & TECHNOLOGY;
AMERICAN CIVIL LIBERTIES UNION FOUNDATION; CONSERVATIVE
LEGAL DEFENSE AND EDUCATION FUND; DOWNSIZEDC.ORG; DOWNSIZE
DC FOUNDATION; GUN OWNERS OF AMERICA, INC.; GUN OWNERS
FOUNDATION; INSTITUTE ON THE CONSTITUTION; REPORTERS
COMMITTEE FOR FREEDOM OF THE PRESS; UNITED STATES JUSTICE
FOUNDATION,
Amici Supporting Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:11-cr-00094-RDB-1; 1:11-cr-00094-RDB-2)
Argued: March 23, 2016 Decided: May 31, 2016
Before TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, MOTZ,
KING, GREGORY, SHEDD, DUNCAN, AGEE, KEENAN, WYNN, DIAZ, FLOYD,
THACKER, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the majority
opinion, in which Chief Judge Traxler and Judges Wilkinson,
Niemeyer, King, Gregory, Shedd, Duncan, Agee, Keenan, Diaz and
Harris joined. Judge Wilkinson wrote a separate concurring
opinion. Judge Wynn wrote a dissenting opinion in which Judges
Floyd and Thacker joined.
ARGUED: Meghan Suzanne Skelton, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellants. Rod J.
Rosenstein, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore,
Maryland, for Appellant Aaron Graham; Ruth Vernet, RUTH J.
2
VERNET, ESQ., LLC, Rockville, Maryland, for Appellant Eric
Jordan. Nathan Judish, Computer Crime & Intellectual Property
Section, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.;
Sujit Raman, Chief of Appeals, Greenbelt, Maryland, Benjamin M.
Block, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee. Nathan
Freed Wessler, Catherine Crump, Ben Wizner, AMERICAN CIVIL
LIBERTIES UNION FOUNDATION, New York, New York; David R. Rocah,
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND,
Baltimore, Maryland; Kevin S. Bankston, Gregory T. Nojeim,
CENTER FOR DEMOCRACY & TECHNOLOGY, Washington, D.C.; Thomas K.
Maher, Vice-Chair, 4th Circuit Amicus Committee, NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, Durham, North Carolina;
Hanni Fakhoury, ELECTRONIC FRONTIER FOUNDATION, San Francisco,
California, for Amici American Civil Liberties Union Foundation,
American Civil Liberties Union Foundation of Maryland, Center
for Democracy & Technology, Electronic Frontier Foundation, and
National Association of Criminal Defense Lawyers. Michael
Connelly, Ramona, California, for Amicus United States Justice
Foundation; Robert J. Olson, Herbert W. Titus, William J. Olson,
Jeremiah L. Morgan, WILLIAM J. OLSON, P.C., Vienna, Virginia,
for Amici DownsizeDC.org, Downsize DC Foundation, United States
Justice Foundation, Gun Owners of America, Inc., Gun Owners
Foundation, Conservative Legal Defense and Education Fund, and
Institute on the Constitution. Bruce D. Brown, Gregg Leslie,
Hannah Bloch-Wehba, REPORTERS COMMITTEE FOR FREEDOM OF THE
PRESS, Washington, D.C., for Amicus Reporters Committee for
Freedom of the Press.
3
DIANA GRIBBON MOTZ, Circuit Judge:
In United States v. Graham, 796 F.3d 332 (4th Cir. 2015), a
panel of this court affirmed the convictions of Defendants Aaron
Graham and Eric Jordan arising from their participation in a
series of armed robberies. The panel opinion sets out the facts
of this case in great detail. Id. at 339-43. The only facts
now relevant concern the portion of the Government’s
investigation during which it obtained historical cell-site
location information (CSLI) from Defendants’ cell phone
provider. This historical CSLI indicated which cell tower --
usually the one closest to the cell phone -- transmitted a
signal when the Defendants used their cell phones to make and
receive calls and texts. The Government used the historical
CSLI at Defendants’ trial to place them in the vicinity of the
armed robberies when the robberies had occurred.
A majority of the panel held that, although the Government
acted in good faith in doing so, it had violated Defendants’
Fourth Amendment rights when it obtained the CSLI without a
warrant. The majority directed that henceforth the Government
must secure a warrant supported by probable cause before
obtaining these records from cell phone providers. The
Government moved for rehearing en banc, which we granted,
vacating the panel opinion. See United States v. Graham, 624 F.
App’x 75 (4th Cir. 2015); 4th Cir. R. 35(c). We now hold that
4
the Government’s acquisition of historical CSLI from Defendants’
cell phone provider did not violate the Fourth Amendment. 1
Supreme Court precedent mandates this conclusion. For the
Court has long held that an individual enjoys no Fourth
Amendment protection “in information he voluntarily turns over
to [a] third part[y].” Smith v. Maryland, 442 U.S. 735, 743-44
(1979). This rule -- the third-party doctrine -- applies even
when “the information is revealed” to a third party, as it
assertedly was here, “on the assumption that it will be used
only for a limited purpose and the confidence placed in the
third party will not be betrayed.” United States v. Miller, 425
U.S. 435, 443 (1976). All of our sister circuits to have
1
We reinstate the affirmance of Defendants’ convictions and
sentences and adopt the panel opinion with respect to all issues
not addressed in this opinion. We note that, after en banc oral
argument, Defendants moved to file supplemental briefing on a
new claim, based on Johnson v. United States, 135 S. Ct. 2551,
2554 (2015). Defendants argued, for the first time, that
Johnson’s holding rendering 18 U.S.C. § 924(e) void for
vagueness also renders void different language in § 924(c). We
denied the motion as untimely. Even if we were to consider
Defendants’ late claim, however, it would not survive plain
error review. United States v. Carthorne, 726 F.3d 503, 516
(4th Cir. 2013) (“An error is plain ‘if the settled law of the
Supreme Court or this circuit establishes that an error has
occurred.’”). This court has not yet addressed this claim, and
our sister circuits have divided on the issue. Compare United
States v. Vivas–Ceja, 808 F.3d 719, 723 (7th Cir. 2015)
(applying Johnson to find language identical to § 924(c) void
for vagueness), and Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th
Cir. 2015) (same), with United States v. Taylor, 814 F.3d 340,
375-79 (6th Cir. 2016) (declining to find § 924(c) void for
vagueness after Johnson).
5
considered the question have held, as we do today, that the
government does not violate the Fourth Amendment when it obtains
historical CSLI from a service provider without a warrant. In
addition to disregarding precedent, Defendants’ contrary
arguments misunderstand the nature of CSLI, improperly attempt
to redefine the third-party doctrine, and blur the critical
distinction between content and non-content information.
The Supreme Court may in the future limit, or even
eliminate, the third-party doctrine. Congress may act to
require a warrant for CSLI. But without a change in controlling
law, we cannot conclude that the Government violated the Fourth
Amendment in this case.
I.
The Fourth Amendment ensures that “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not
be violated.” U.S. Const. amend. IV. Broadly, “a Fourth
Amendment search occurs when the government violates a
subjective expectation of privacy that society recognizes as
reasonable.” Kyllo v. United States, 533 U.S. 27, 33 (2001).
The issue that confronts us here is whether the Government’s
acquisition of the historical CSLI records constituted a Fourth
Amendment search.
6
In assessing whether such a search has occurred, “it is
important to begin by specifying precisely the nature of the
state activity that is challenged.” Smith, 442 U.S. at 741
(emphasis added). Here, that “activity” is the Government’s
acquisition from a phone company, Sprint/Nextel, of historical
CSLI records -- i.e., the records of the phone company that
identify which cell towers it used to route Defendants’ calls
and messages. The Government did not surreptitiously view,
listen to, record, or in any other way engage in direct
surveillance of Defendants to obtain this information. Rather,
as the Sprint/Nextel custodian of the CSLI records testified at
trial, CSLI is created and maintained in the normal course of
Sprint/Nextel’s business. Defendants themselves acknowledge
that service providers, like Sprint/Nextel, maintain CSLI
records “[b]y technical and practical necessity.” Defendants’
Br. at 13. 2
Moreover, to obtain the CSLI from Sprint/Nextel, the
Government had to apply to a federal court for an order
directing the company to disclose the records. The Stored
2
As the Sixth Circuit explained, “[c]arriers necessarily
track their customers’ phones across different cell-site sectors
to connect and maintain their customers’ calls,” and keep CSLI
records “to find weak spots in their network and to determine
whether roaming charges apply, among other purposes.” United
States v. Carpenter, Nos. 14-1572/1805, 2016 WL 1445183, at *4.
(6th Cir. Apr. 13, 2016).
7
Communications Act (SCA or the Act) provides that, to gain
access to even these non-content records, the Government must
demonstrate either probable cause for a warrant or “specific and
articulable facts showing that there are reasonable grounds to
believe that . . . the records . . . are relevant and material
to an ongoing criminal investigation” for a court order. 18
U.S.C. § 2703(c), (d) (2012). The Government followed the
second route and Defendants do not contend that in doing so it
failed to meet the requirements of the Act. What Defendants do
contend is that in permitting the Government to obtain the
Sprint/Nextel records in this way, the Act violates the Fourth
Amendment. According to Defendants, the statute permits the
Government to unconstitutionally collect their private
information.
This argument ignores the nature of the governmental
activity here, which critically distinguishes this case from
those in which the government did unconstitutionally collect
private information. In United States v. Karo, 468 U.S. 705,
714-15 (1984), for instance, the Drug Enforcement Agency placed
a beeper within a can of ether and received tracking information
from the beeper while the can was inside a private residence.
Similarly, in Kyllo, 533 U.S. at 34-35, the Department of the
Interior used a thermal imager to gather “information regarding
the interior of the home.” And in United States v. Jones, 132
8
S. Ct. 945, 948-49, 954 (2012), the FBI and local law
enforcement secretly installed a GPS tracking device on a
suspect’s vehicle and monitored the vehicle’s movements for four
weeks. 3
On the basis of these cases, Defendants contend that the
government always invades an individual’s reasonable expectation
of privacy when it employs technological devices to track an
individual’s moves. Perhaps so. But that question is not
before us. No government tracking is at issue here. Rather,
the question before us is whether the government invades an
individual’s reasonable expectation of privacy when it obtains,
from a third party, the third party’s records, which permit the
government to deduce location information. Karo, Kyllo, and
3 Contrary to Defendants’ suggestion, and unlike the
information in Karo and Jones, the CSLI obtained here does not
enable the government to “place an individual” at home or at
other private locations. The historical CSLI at issue here does
not provide location information anywhere near that specific.
Rather, the record evidence establishes that each of the cell
sites at issue here covers an area with a radius of up to two
miles, and each data point of CSLI corresponds to a roughly 120-
degree sector of a cell site’s coverage area. That means the
CSLI could only determine the four-square-mile area within which
a person used his cell phone. Although we do not think the
applicability of the Fourth Amendment hinges on the precision of
CSLI, it is premature to equate CSLI with the surveillance
information obtained in Karo and Jones.
9
Jones, all of which involve direct government surveillance
activity, tell us nothing about the answer to that question. 4
Instead, the cases that establish the third-party doctrine
provide the answer. Under the third-party doctrine, an
individual can claim “no legitimate expectation of privacy” in
information that he has voluntarily turned over to a third
party. Smith, 442 U.S. at 743-44. The Supreme Court has
reasoned that, by “revealing his affairs to another,” an
individual “takes the risk . . . that the information will be
conveyed by that person to the Government.” Miller, 425 U.S. at
443. The Fourth Amendment does not protect information
voluntarily disclosed to a third party because even a subjective
expectation of privacy in such information is “not one that
society is prepared to recognize as ‘reasonable.’” Smith, 442
U.S. at 743 (internal quotation marks and citation omitted).
The government therefore does not engage in a Fourth Amendment
“search” when it acquires such information from a third party. 5
4
Like these instances of government surveillance, when the
government uses cell-site simulators (often called “stingrays”)
to directly intercept CSLI instead of obtaining CSLI records
from phone companies, the Department of Justice requires a
warrant. See Dep’t of Justice, Department of Justice Policy
Guidance: Use of Cell-Site Simulators 3 (2015), available at
https://www.justice.gov/opa/file/767321/download.
5 Defendants argue that “[t]he government, not the cellular
service providers, surveilled [them].” Defendants’ En Banc Br.
at 7. This is assertedly so because (1) the Communications
Assistance For Law Enforcement Act, 47 U.S.C. § 1002 (2012)
(Continued)
10
Applying the third-party doctrine to the facts of this
case, we hold that Defendants did not have a reasonable
expectation of privacy in the historical CSLI. The Supreme
Court’s reasoning in Smith controls. There, the defendant
challenged the government’s use of a pen register -- a device
that could record the outgoing phone numbers dialed from his
home telephone. Id. at 737. The Court held that the defendant
could “claim no legitimate expectation of privacy” in the
numbers he had dialed because he had “voluntarily conveyed”
those numbers to the phone company by “‘expos[ing]’ that
information to” the phone company’s “equipment in the ordinary
course of business.” Id. at 744. The defendant thereby
“assumed the risk that the company would reveal to police the
numbers he dialed.” Id.
(CALEA), requires service providers to have the capacity to
allow law enforcement to access CSLI, and (2) service providers
use CSLI in the aggregate, while law enforcement analyzes
individuals’ CSLI to infer their location. Neither argument is
sound. Miller involved a federal statute that similarly
required a service provider (there, a bank) to create and
maintain customer records, and the Supreme Court expressly held
that the statute did not affect the applicability of the third-
party doctrine. See Miller, 425 U.S. at 436, 440-44. Moreover,
the third-party doctrine does not require the government to use
the third party’s records in the same way the third party does.
Third parties maintain records in the ordinary course of their
own business. See Smith, 442 U.S. at 744. That business is
usually not crime-fighting. See, e.g., id. Thus, law
enforcement will almost always use the accessed information for
a different purpose and in a different way than the third party.
11
Here, as in Smith, Defendants unquestionably “exposed” the
information at issue to the phone company’s “equipment in the
ordinary course of business.” Id. Each time Defendants made or
received a call, or sent or received a text message --
activities well within the “ordinary course” of cell phone
ownership -- Sprint/Nextel generated a record of the cell towers
used. The CSLI that Sprint/Nextel recorded was necessary to
route Defendants’ cell phone calls and texts, just as the dialed
numbers recorded by the pen register in Smith were necessary to
route the defendant’s landline calls. Having “exposed” the CSLI
to Sprint/Nextel, Defendants here, like the defendant in Smith,
“assumed the risk” that the phone company would disclose their
information to the government. Id. at 744. For these reasons,
the Government’s acquisition of that information (historical
CSLI) pursuant to § 2703(d) orders, rather than warrants, did
not violate the Fourth Amendment.
This holding accords with that of every other federal
appellate court that has considered the Fourth Amendment
question before us. Not one has adopted the Defendants’ theory.
Three of our sister courts have expressly held, as we do
today, that individuals do not have a reasonable expectation of
privacy in historical CSLI records that the government obtains
from cell phone service providers through a § 2703(d) order.
See United States v. Carpenter, Nos. 14-1572/1805, 2016 WL
12
1445183, at *4-6 (6th Cir. Apr. 13, 2016) (holding that “for the
same reasons that Smith had no expectation of privacy in the
numerical information at issue [in Smith], the defendants have
no such expectation in the [CSLI] locational information here”);
United States v. Davis, 785 F.3d 498, 511-13 (11th Cir.) (en
banc) (holding that defendant has no “objective[ly] reasonable
expectation of privacy in MetroPCS’s business records showing
the cell tower locations that wirelessly connected his calls”),
cert. denied, 136 S. Ct. 479 (2015); In re Application of U.S.
for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013)
(In re Application (Fifth Circuit)) (holding that the government
can use “[s]ection 2703(d) orders to obtain historical cell site
information” without implicating the Fourth Amendment (emphasis
omitted)). And although the fourth of our sister courts opined
that “[a] cell phone customer has not ‘voluntarily’ shared his
location information with a cellular provider in any meaningful
way,” it held that “CSLI from cell phone calls is obtainable
under a § 2703(d) order,” which “does not require the
traditional probable cause determination” necessary for a
warrant. In re Application of U.S. for an Order Directing a
Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t,
620 F.3d 304, 313, 317 (3d Cir. 2010) (In re Application (Third
Circuit)).
13
Moreover, even in the absence of binding circuit precedent,
the vast majority of federal district court judges have reached
the same conclusion. 6 Defendants are forced to rely on four
inapposite state cases that either interpret broader state
constitutional provisions instead of the Fourth Amendment, or do
6 See, e.g., United States v. Wheeler, No. 15-216, 2016 WL
1048989, at *11-13 (E.D. Wis. Mar. 14, 2016) (Pepper, J.);
United States v. Chavez, No. 3:14-185, 2016 WL 740246, at *2-4
(D. Conn. Feb. 24, 2016) (Meyer, J.); United States v. Epstein,
No. 14-287, 2015 WL 1646838, at *4 (D.N.J. Apr. 14, 2015)
(Wolfson, J.); United States v. Dorsey, No. 14-328, 2015 WL
847395, at *8 (C.D. Cal. Feb. 23, 2015) (Snyder, J.); United
States v. Lang, No. 14-390, 2015 WL 327338, at *3-4 (N.D. Ill.
Jan. 23, 2015) (St. Eve, J.); United States v. Shah, No. 13-328,
2015 WL 72118, at *7-9 (E.D.N.C. Jan. 6, 2015) (Flanagan, J.);
United States v. Martinez, No. 13-3560, 2014 WL 5480686, at *3-5
(S.D. Cal. Oct. 28, 2014) (Hayes, J.); United States v. Rogers,
71 F. Supp. 3d 745, 748-50 (N.D. Ill. 2014)(Kocoras, J.); United
States v. Giddins, 57 F. Supp. 3d 481, 491-94 (D. Md. 2014)
(Quarles, J.); United States v. Banks, 52 F. Supp. 3d 1201,
1204-06 (D. Kan. 2014) (Crabtree, J.); United States v. Serrano,
No. 13-58, 2014 WL 2696569, at *6-7 (S.D.N.Y. June 10, 2014)
(Forrest, J.); United States v. Moreno-Nevarez, No. 13-0841,
2013 WL 5631017, at *1-2 (S.D. Cal. Oct. 2, 2013) (Benitez, J.);
United States v. Rigmaiden, No. 08-814, 2013 WL 1932800, at *14
(D. Ariz. May 8, 2013) (Campbell, J.); United States v. Gordon,
No. 09-153-02, 2012 WL 8499876, at *2 (D.D.C. Feb. 6, 2012)
(Urbina, J.); United States v. Benford, No. 09-86, 2010 WL
1266507, at *2-3 (N.D. Ind. Mar. 26, 2010) (Moody, J.); In re
Applications of U.S. for Orders Pursuant to Title 18, U.S. Code
Section 2703(d), 509 F. Supp. 2d 76, 79-82 (D. Mass. 2007)
(Stearns, J.). But see In re Application for Tel. Info. Needed
for a Criminal Investigation, 119 F. Supp. 3d 1011, 1024 (N.D.
Cal. 2015) (Koh, J.); In re Application of U.S. for an Order
Authorizing Release of Historical Cell-Site Info., 809 F. Supp.
2d 113, 120-27 (E.D.N.Y. 2011) (Garaufis, J.).
14
not consider historical CSLI records, or both. 7 In sum, the
Defendants’ preferred holding lacks support from all relevant
authority and would place us in conflict with the Supreme Court
and every other federal appellate court to consider the
question.
II.
Despite the lack of support for their position, Defendants
insist that the third-party doctrine does not apply here. They
argue that “[a] cell phone user does not even possess the CSLI
to voluntarily convey,” and that even assuming users do convey
such information, “revealing this information is compelled, not
7 Three of the state cases interpret broader state
constitutional protections than the Fourth Amendment. See
Commonwealth v. Augustine, 4 N.E.3d 846, 858 (Mass. 2014)
(finding “no need to wade into the[] Fourth Amendment waters”
when the court could rely on article 14 of the Massachusetts
Declaration of Rights); State v. Earls, 70 A.3d 630, 641-42
(N.J. 2013) (explaining that New Jersey has “departed” from
Smith and Miller and does not recognize the third-party
doctrine); People v. Weaver, 909 N.E.2d 1195, 1201-02 (N.Y.
2009) (“[W]e premise our ruling on our State Constitution
alone.”). In addition to interpreting only the state
constitution, the third case dealt with direct GPS surveillance
by police, not CSLI records procured from a phone company.
Weaver, 909 N.E.2d at 1201-02. And the court in the fourth
state case repeatedly pointed out that it was not considering
“historical cell site location records” -- like those at issue
here -- but “real time cell site location information,” which
had been obtained not through a § 2703(d) order, but under an
order that had authorized only a “pen register” and “trap and
trace device.” Tracey v. State, 152 So.3d 504, 506-08, 515-16,
526 (Fla. 2014).
15
voluntary.” 8 Defendants’ En Banc Br. at 10-11. These arguments
misapprehend the nature of CSLI, improperly attempt to redefine
the third-party doctrine, and rest on a long-rejected factual
argument and the constitutional protection afforded a
communication’s content.
A.
Defendants maintain that cell phone users do not convey
CSLI to phone providers, voluntarily or otherwise. We reject
that contention. With respect to the nature of CSLI, there can
be little question that cell phone users “convey” CSLI to their
service providers. After all, if they do not, then who does?
Perhaps Defendants believe that because a service provider
generates a record of CSLI, the provider just conveys CSLI to
itself. But before the provider can create such a record, it
must receive information indicating that a cell phone user is
relying on a particular cell tower. The provider only receives
that information when a cell phone user’s phone exchanges
signals with the nearest available cell tower. A cell phone
8
Defendants also emphasize the “highly private” nature of
location information. Defendants’ En Banc Br. at 13. But to
the extent they do so to argue that the third-party doctrine
does not apply to CSLI, they are mistaken. The third-party
doctrine clearly covers information that is also considered
“highly private,” like financial records, Miller, 425 U.S. at
441-43, phone records, Smith, 442 U.S. at 743-745, and secrets
shared with confidants, United States v. White, 401 U.S. 745,
749 (1971).
16
user therefore “conveys” the location of the cell towers his
phone connects with to his provider whenever he uses the
provider’s network.
There is similarly little question that cell phone users
convey CSLI to their service providers “voluntarily.” See
Davis, 785 F.3d at 512 n.12 (“Cell phone users voluntarily
convey cell tower location information to telephone companies in
the course of making and receiving calls on their cell
phones.”). This is so, as the Fifth Circuit explained, even
though a cell phone user “does not directly inform his service
provider of the location of the nearest cell phone tower.” In
re Application (Fifth Circuit), 724 F.3d at 614; see also
Carpenter, 2016 WL 1445183, at *5.
Logic compels this conclusion. When an individual
purchases a cell phone and chooses a service provider, he
expects the provider will, at a minimum, route outgoing and
incoming calls and text messages. As most cell phone users know
all too well, proximity to a cell tower is necessary to complete
these tasks. Anyone who has stepped outside to “get a signal,”
or has warned a caller of a potential loss of service before
entering an elevator, understands, on some level, that location
matters. See In re Application (Fifth Circuit), 724 F.3d at 613
(“Cell phone users recognize that, if their phone cannot pick up
17
a signal (or ‘has no bars’), they are out of the range of their
service provider’s network of towers.”).
A cell phone user voluntarily enters an arrangement with
his service provider in which he knows that he must maintain
proximity to the provider’s cell towers in order for his phone
to function. See Carpenter, 2016 WL 1445183, at *5 (“[A]ny
cellphone user who has seen her phone’s signal strength
fluctuate must know that, when she places or receives a call,
her phone ‘exposes’ its location to the nearest cell tower and
thus to the company that operates the tower.”). Whenever he
expects his phone to work, he is permitting -- indeed,
requesting -- his service provider to establish a connection
between his phone and a nearby cell tower. A cell phone user
thus voluntarily conveys the information necessary for his
service provider to identify the CSLI for his calls and texts.
And whether the service provider actually “elects to make a
. . . record” of this information “does not . . . make any
constitutional difference.” Smith, 442 U.S. at 745.
To be sure, some cell phone users may not recognize, in the
moment, that they are “conveying” CSLI to their service
provider. See In re Application (Third Circuit), 620 F.3d at
317. But the Supreme Court’s use of the word “voluntarily” in
Smith and Miller does not require contemporaneous recognition of
18
every detail an individual conveys to a third party. 9 Rather,
these cases make clear that the third-party doctrine does not
apply when an individual involuntarily conveys information -- as
when the government conducts surreptitious surveillance or when
a third party steals private information.
Thus, this would be a different case if Sprint/Nextel had
misused its access to Defendants’ phones and secretly recorded,
at the Government’s behest, information unnecessary to the
provision of cell service. Defendants did not assume that risk
9 If it were otherwise, courts would frequently need to
parse business records for indicia of what an individual knew he
conveyed to a third party. For example, when a person hands his
credit card to the cashier at a grocery store, he may not pause
to consider that he is also “conveying” to his credit card
company the date and time of his purchase or the store’s street
address. But he would hardly be able to use that as an excuse
to claim an expectation of privacy if those pieces of
information appear in the credit card company’s resulting
records of the transaction. Cf. United States v. Phibbs, 999
F.2d 1053, 1077-78 (6th Cir. 1993) (Defendant “did not have both
an actual and a justifiable privacy interest in . . . his credit
card statements.”).
Our dissenting colleagues similarly argue that the third-
party doctrine requires specific “knowledge” on the part of the
phone user about what information is being conveyed at the time.
Because phone users usually do not “know[]” their own CSLI, the
dissent argues, they cannot convey it. But the dissent cannot
have it both ways: Accepting its premise as true for purposes
of argument, we fail to see how a phone user could have a
reasonable expectation of privacy in something he does not know.
Indeed, the dissent rightly questions “whether anyone could
credibly assert the infringement of a legitimate expectation of
privacy” in “numbers dialed by someone else.” The same logic
would also apply to CSLI, which is created “by someone else” --
and of which phone users, according to the dissent, are not even
“aware.”
19
when they made calls or sent messages. But like the defendant
in Smith, 442 U.S. at 745, Defendants here did “assume the risk”
that the phone company would make a record of the information
necessary to accomplish the very tasks they paid the phone
company to perform. They cannot now protest that providing this
essential information was involuntary.
B.
In their efforts to avoid the third-party doctrine,
Defendants attempt to redefine it. They maintain that the
third-party doctrine does not apply to historical CSLI because a
cell phone user does not “actively choose[] to share” his
location information. Defendants’ Br. at 30. Such a rule is
nowhere to be found in either Miller or Smith. Moreover, this
purported requirement cannot be squared with the myriad of
federal cases that permit the government to acquire third-party
records, even when individuals do not “actively choose to share”
the information contained in those records.
For example, courts have attached no constitutional
significance to the distinction between records of incoming
versus outgoing phone calls. The technology the police used in
Smith -- a pen register -- recorded only the numbers dialed by a
suspect’s phone. It did not (and could not) record any
information about incoming calls. To capture that information,
police routinely use a “trap and trace” device. If Defendants
20
were correct that the third-party doctrine applies just when an
individual “actively chooses to share” information, then any
effort to acquire records of incoming phone calls would
constitute a search protected by the Fourth Amendment. After
all, the phone customer never “actively chooses to share” with
the phone company the numbers from incoming telephone calls.
Only the user on the other end of the line, who actually dials
the numbers, does so.
But federal courts have not required a warrant supported by
probable cause to obtain such information. Rather, they
routinely permit the government to install “trap and trace”
devices without demonstrating probable cause. See, e.g., United
States v. Reed, 575 F.3d 900, 914-17 (9th Cir. 2009); United
States v. Hallmark, 911 F.2d 399, 402 (10th Cir. 1990). 10 And
recently we held that police “did not violate the Fourth
Amendment” when obtaining a defendant’s “cellular phone
records,” even though the records included “basic information
10 Our dissenting colleagues posit that perhaps records of
incoming calls have just not been challenged in court. They
have been. See, e.g., In re Application of F.B.I., No. BR 14-
01, 2014 WL 5463097, at *4 (Foreign Intel. Surv. Ct. Mar. 20,
2014) (listing courts that “have relied on Smith in concluding
that the Fourth Amendment does not apply to . . . incoming
calls”); Reed, 575 F.3d at 914 (noting that there is “no Fourth
Amendment expectation of privacy” in “call origination” data);
Sun Kin Chan v. State, 78 Md. App. 287, 300-01(Md. App. 1989)
(“There is no constitutional distinction between the questions
of 1) whom you call and 2) who calls you.”).
21
regarding incoming and outgoing calls on that phone line.”
United States v. Clenney, 631 F.3d 658, 666-67 (4th Cir. 2011)
(emphasis added). 11
Moreover, outside the context of phone records, we have
held that third-party information relating to the sending and
routing of electronic communications does not receive Fourth
Amendment protection. United States v. Bynum, 604 F.3d 161, 164
(4th Cir. 2010). In Bynum, we explained that it “would not be
objectively reasonable” for a defendant to expect privacy in his
phone and Internet subscriber records, including “his name,
email address, telephone number, and physical address.” Id.
Although we had no occasion in Bynum to consider whether an
individual has a protected privacy interest in his Internet
Protocol (IP) address, id. at 164 n.2, several of our sister
circuits have concluded that no such interest exists. See
United States v. Suing, 712 F.3d 1209, 1213 (8th Cir. 2013);
United States v. Christie, 624 F.3d 558, 574 (3d Cir. 2010).
11 Nor has this court ever suggested that other information
typically contained in phone records -- the date, time, and
duration of each call, for example -- merits constitutional
protection. Yet a phone customer never “actively chooses to
share” this information either. Rather, this information is
passively generated and recorded by the phone company without
overt intervention that might be detected by the target user.
If individuals “voluntarily convey,” all of this information to
their phone companies, we see no basis for drawing the line at
the CSLI at issue here. We note that this case deals with only
2010- and 2011-era historical CSLI, generated by texts and phone
calls made and received by a cell phone.
22
Similarly, the Ninth Circuit has held that “e-mail and
Internet users have no expectation of privacy in . . . the IP
addresses of the websites they visit.” United States v.
Forrester, 512 F.3d 500, 510 (9th Cir. 2008). The Forrester
court also held that there is no reasonable expectation of
privacy in either the to/from addresses of a user’s emails or
the “total amount of data transmitted to or from [a user’s]
account.” Id. at 510-11. The court found the government’s
acquisition of this information “constitutionally
indistinguishable from the use of a pen register that the Court
approved in Smith,” in part because “e-mail and Internet users,
like the telephone users in Smith, rely on third-party equipment
in order to engage in communication.” Id. at 510.
Of course, computer users do “actively choose to share”
some of the information discussed in the above cases, like the
“to” address in an email and the subscriber information conveyed
when signing up for Internet service. But users do not
“actively choose to share” other pieces of information, like an
IP address or the amount of data transmitted to their account.
Internet service providers automatically generate that
information. See Christie, 624 F.3d at 563; cf. Forrester, 512
F.3d at 511. Thus, the redefinition of the third-party doctrine
that Defendants advocate not only conflicts with Supreme Court
23
doctrine and all the CSLI cases from our sister circuits, but is
also at odds with other established circuit precedent.
C.
In another attempt to avoid the third-party doctrine,
Defendants rely on a factual argument long rejected by the
Supreme Court and a series of cases involving the content of
communications to support their assertion that historical CSLI
is protected by the Fourth Amendment.
First, Defendants emphasize that cell phone use is so
ubiquitous in our society today that individuals must risk
producing CSLI or “opt out of modern society.” Defendants’ En
Banc Br. at 11. Defendants contend that such widespread use
shields CSLI from the consequences of the third-party doctrine
and renders any conveyance of CSLI “not voluntary,” for
“[l]iving off the grid . . . is not a prerequisite to enjoying
the protection of the Fourth Amendment.” Id.
But the dissenting justices in Miller and Smith
unsuccessfully advanced nearly identical concerns. Dissenting
in Miller, Justice Brennan contended that “the disclosure by
individuals or business firms of their financial affairs to a
bank is not entirely volitional, since it is impossible to
participate in the economic life of contemporary society without
maintaining a bank account.” 425 U.S. at 451 (Brennan, J.,
dissenting) (internal quotation marks and citation omitted).
24
And dissenting in Smith, Justice Marshall warned that “unless a
person is prepared to forgo use of what for many has become a
personal or professional necessity,” i.e., a telephone, “he
cannot help but accept the risk of surveillance.” 442 U.S. at
750 (Marshall, J., dissenting). It was, in Justice Marshall’s
view, “idle to speak of ‘assuming’ risks in contexts where, as a
practical matter, individuals have no realistic alternative.”
Id. The Supreme Court has thus twice rejected Defendants’
theory. Until the Court says otherwise, these holdings bind us.
Second, Defendants rely on cases that afford Fourth
Amendment protection to the content of communications to suggest
that CSLI warrants the same protection. See Ex parte Jackson,
96 U.S. 727, 733 (1877) (content of letters and packages); Katz
v. United States, 389 U.S. 347, 353 (1967) (content of telephone
calls); United States v. Warshak, 631 F.3d 266, 287-88 (6th Cir.
2010) (content of emails). What Defendants fail to recognize is
that for each medium of communication these cases address, there
is also a case expressly withholding Fourth Amendment protection
from non-content information, i.e., information involving
addresses and routing. See Jackson, 96 U.S. at 733 (no warrant
needed to examine the outside of letters and packages); Smith,
442 U.S. at 743-44 (no reasonable expectation of privacy in
phone numbers dialed); Forrester, 512 F.3d at 510 (no reasonable
expectation of privacy in the to/from addresses of emails);
25
accord Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring)
(noting the Fourth Amendment does not currently protect “phone
numbers” disclosed to phone companies and “e-mail addresses”
disclosed to Internet service providers).
The Supreme Court has thus forged a clear distinction
between the contents of communications and the non-content
information that enables communications providers to transmit
the content. 12 CSLI, which identifies the equipment used to
route calls and texts, undeniably belongs in the non-content
category. As the Sixth Circuit recently recognized, CSLI is
non-content information because “cell-site data -- like mailing
addresses, phone numbers, and IP addresses -- are information
that facilitate personal communications, rather than part of the
content of those communications themselves.” Carpenter, 2016 WL
1445183, at *4.
Defendants disagree with this conclusion. They contend
that CSLI should be treated “as content” because it “record[s] a
person’s movements over a prolonged period,” implicating
“serious . . . privacy concerns.” Defendants’ Br. at 33. But
12In addition to being firmly grounded in the case law, the
content/non-content distinction makes good doctrinal sense. The
intended recipient of the content of communication is not the
third party who transmits it, but the person called, written,
emailed, or texted. The routing and addressing information, by
contrast, is intended for the third parties who facilitate such
transmissions.
26
all routing information “records” some form of potentially
sensitive activity when aggregated over time. For example, a
pen register records every call a person makes and allows the
government to know precisely when he is at home and who he is
calling and credit card records track a consumer’s purchases,
including the location of the stores where he made them. Of
course, CSLI is not identical to either of these other forms of
routing information, just as cell phones are not identical to
other modes of communication. It blinks at reality, however, to
hold that CSLI, which contains no content, somehow constitutes a
communication of content for Fourth Amendment purposes.
Defendants’ attempts to blur this clear distinction 13
further illustrate the extent to which their proposed holding
13Related concerns about a general “erosion of privacy”
with respect to cell phones rest on a similar misapprehension of
this distinction. These concerns revolve around protecting the
large quantity of information stored on modern cell phones and
on remote servers like the “cloud.” See, e.g., Davis, 785 F.3d
at 536 (Martin, J., dissenting). If all that information were
indeed at risk of disclosure, we would share this concern. But
documents stored on phones and remote servers are protected, as
“content,” in the same way that the contents of text messages or
documents and effects stored in a rented storage unit or office
are protected. See, e.g., United States v. Johns, 851 F.2d
1131, 1136 (9th Cir. 1988) (finding that a person renting a
storage unit has a reasonable expectation of privacy in its
contents); United States v. Speights, 557 F.2d 362, 363 (3d Cir.
1977) (finding reasonable expectation of privacy in secured
locker at place of employment). These are clear limiting
principles. Our holding today, that the Government may acquire
with a court order, but without a warrant, non-content routing
(Continued)
27
would be a constitutional outlier -- untenable in the abstract
and bizarre in practice. Case in point: Under Defendants’
theory, the Government could legally obtain, without a warrant,
all data in the Sprint/Nextel records admitted into evidence
here, except the CSLI. If that is so, then the line between a
Fourth Amendment “search” and “not a search” would be the
literal line that, moving left to right across the Sprint/Nextel
spreadsheets, separates the seventh column from the eighth. The
records to the left of that line list the source of a call, the
number dialed, the date and time of the call, and the call’s
duration -- all of which the government can acquire without
triggering Fourth Amendment protection. The records to the
right of that line list the cell phone towers used at the start
and end of each call -- information Defendants’ contend is
protected by the Fourth Amendment. Constitutional distinctions
are made of sturdier stuff.
III.
Technology has enabled cell phone companies, like
Sprint/Nextel, to collect a vast amount of information about
their customers. The quantity of data at issue in this case --
information (including historical CSLI), does not disturb those
principles.
28
seven months’ worth of cell phone records, spanning nearly
30,000 calls and texts for each defendant -- unquestionably
implicates weighty privacy interests.
Outrage at the amount of information the Government
obtained, rather than concern for any legal principle, seems to
be at the heart of Defendants’ arguments. Thus they repeatedly
emphasize the amount of CSLI obtained here and rely on authority
suggesting that the government can obtain a limited amount of
CSLI without a warrant. In response, the panel majority
expressly held that the government can acquire some amount of
CSLI “before its inspection rises to the level of a Fourth
Amendment search.” Graham, 796 F.3d at 350 n.8. But, if as
Defendants maintain, every bit of CSLI has the potential to
“show when a particular individual is home,” and no CSLI is
voluntarily conveyed, Defendants’ Br. at 19-20, then why would
only large quantities of CSLI be protected by the Fourth
Amendment? 14
Defendants’ answer appears to rest on a misunderstanding of
the analysis embraced in the two concurring opinions in Jones.
There, the concurring justices recognized a line between “short-
14The lack of a bright line between permissible and
impermissible amounts of CSLI also stands at odds with the
Supreme Court’s “general preference to provide clear guidance to
law enforcement through categorical rules.” Riley v.
California, 134 S. Ct. 2473, 2491 (2014).
29
term monitoring of a person’s movements on public streets,”
which would not infringe a reasonable expectation of privacy,
and “longer term GPS monitoring,” which would. Jones, 132 S.
Ct. at 964 (Alito, J., concurring in the judgment); see also id.
at 955 (Sotomayor, J., concurring). But Jones involved
government surveillance of an individual, not an individual’s
voluntary disclosure of information to a third party. And
determining when government surveillance infringes on an
individual’s reasonable expectation of privacy requires a very
different analysis.
In considering the legality of the government surveillance
at issue in Jones, Justice Alito looked to what a hypothetical
law enforcement officer, engaged in visual surveillance, could
reasonably have learned about the defendant. He concluded that
four weeks of GPS monitoring by the government constituted a
Fourth Amendment “search” because “society’s expectation” had
always been “that law enforcement agents and others would not --
and indeed, in the main, simply could not -- secretly monitor
and catalogue” an individual’s movements in public for very
long. Id. at 964 (Alito, J., concurring in the judgment)
(emphasis added). In other words, direct surveillance by the
government using technological means may, at some point, be
30
limited by the government’s capacity to accomplish such
surveillance by physical means. 15
However, society has no analogous expectations about the
capacity of third parties to maintain business records. Indeed,
we expect that our banks, doctors, credit card companies, and
countless other third parties will record and keep information
about our relationships with them, and will do so for the
entirety of those relationships -- be it several weeks or many
years. Third parties can even retain their records about us
after our relationships with them end; it is their prerogative,
and many business-related reasons exist for doing so. This is
true even when, in the aggregate, these records reveal sensitive
information similar to what could be revealed by direct
surveillance. For this reason, Justice Alito’s concern in Jones
is simply inapposite to the third-party doctrine and to the
instant case.
Here, Defendants voluntarily disclosed all the CSLI at
issue to Sprint/Nextel. And the very act of disclosure negated
15
We note, though, that such a rule would be unprecedented
in rendering unconstitutional -- because of some later action --
conduct that was undoubtedly constitutional at the time it was
undertaken. See United States v. Sparks, 750 F. Supp. 2d 384,
392 (D. Mass. 2010), aff’d, 711 F.3d 58 (1st Cir. 2013)
(recognizing the aggregation theory as “unworkable” because
“conduct that is initially constitutionally sound could later be
deemed impermissible if it becomes part of the aggregate”).
31
any reasonable expectation of privacy, regardless of how
frequently that disclosure occurred or how long the third party
maintained records of the disclosures. Defendants ignore these
critical facts, attempting to apply the same constitutional
requirements for location information acquired directly through
GPS tracking by the government to historical CSLI disclosed to
and maintained by a third party.
We recognize the appeal -- if we were writing on a clean
slate -- in holding that individuals always have a reasonable
expectation of privacy in large quantities of location
information, even if they have shared that information with a
phone company. But the third-party doctrine does not afford us
that option. Intrinsic to the doctrine is an assumption that
the quantity of information an individual shares with a third
party does not affect whether that individual has a reasonable
expectation of privacy.
Although third parties have access to much more information
now than they did when the Supreme Court decided Smith, the
Court was certainly then aware of the privacy implications of
the third-party doctrine. Justice Stewart warned the Smith
majority that “broadcast[ing] to the world a list of the local
or long distance numbers” a person has called could “reveal the
most intimate details of [that] person’s life.” Smith, 442 U.S.
at 748 (Stewart, J., dissenting). That is, in essence, the very
32
concern that Defendants raise. But the Supreme Court was
unmoved by the argument then, and it is not our place to credit
it now. If individuals lack any legitimate expectation of
privacy in information they share with a third party, then
sharing more non-private information with that third party
cannot change the calculus.
Of course, in the face of rapidly advancing technology,
courts must “assure[] preservation of that degree of privacy
against government that existed when the Fourth Amendment was
adopted.” Kyllo, 533 U.S. at 34. The Supreme Court has long
concluded that the third-party doctrine does this. Thus the
Court has never held that routing information, like CSLI, shared
with third parties to allow them to deliver a message or provide
a service is protected under the Fourth Amendment. Perhaps this
is implicit acknowledgment that the privacy-erosion argument has
a flip-side: technological advances also do not give individuals
a Fourth Amendment right to conceal information that otherwise
would not have been private. 16
16For example, the Smith Court noted that, because a phone
user who “had placed his calls through an operator . . . could
claim no legitimate expectation of privacy” in routing
information exposed to that operator, “a different
constitutional result” did not follow simply “because the
telephone company has decided to automate.” Smith, 442 U.S. at
744-45. Similarly here, “a different constitutional result”
does not follow because the telephone company has decided to
make its phones mobile. Cf. United States v. Skinner, 690 F.3d
(Continued)
33
Moreover, application of the third-party doctrine does not
render privacy an unavoidable casualty of technological progress
-- Congress remains free to require greater privacy protection
if it believes that desirable. The legislative branch is far
better positioned to respond to changes in technology than are
the courts. See Jones, 132 S. Ct. at 964 (Alito, J., concurring
in the judgment) (“A legislative body is well situated to gauge
changing public attitudes, to draw detailed lines, and to
balance privacy and public safety in a comprehensive way.”); see
also In re Application (Fifth Circuit), 724 F.3d at 615
(explaining that that the proper “recourse” for those seeking
increased privacy is often “in the market or the political
process”).
The very statute at issue here, the Stored Communications
Act (SCA), demonstrates that Congress can -- and does -- make
these judgments. The SCA requires the government to meet a
higher burden when acquiring “the contents of a wire or
electronic communication” from “a provider of electronic
communication service” than when obtaining “a record . . .
pertaining to a subscriber . . . or customer” from the provider.
18 U.S.C. § 2703(a), (c) (emphasis added). It requires the
772, 778 (6th Cir. 2012) (“Law enforcement tactics must be
allowed to advance with technological changes, in order to
prevent criminals from circumventing the justice system.”).
34
executive to obtain judicial approval, as the Government did
here, before acquiring even non-content information. Id.
§ 2703(c), (d). And the SCA is part of a broader statute, the
Electronic Communications Privacy Act of 1986 (ECPA), which
Congress enacted in the wake of Smith. See Pub. L. No. 99-508,
100 Stat. 1848. In the ECPA, Congress responded directly to the
holding in Smith by requiring the government to obtain a court
order (albeit not one supported by probable cause) before
installing a pen register or “trap and trace” device. See 18
U.S.C. § 3121(a) (2012). Although Congress could undoubtedly do
more, it has not been asleep at the switch. 17
Ultimately, of course, the Supreme Court may decide to
revisit the third-party doctrine. Justice Sotomayor has
suggested that the doctrine is “ill suited to the digital age,
in which people reveal a great deal of information about
17Indeed, Congress has been actively considering changes to
the ECPA in recent years based on advances in technology. See
Jared P. Cole & Richard M. Thompson II, Congressional Research
Service, Stored Communications Act: Reform of the Electronic
Communications Privacy Act (ECPA), 8-10 (2015) (describing
various proposed congressional amendments to the ECPA); Scott A.
Fraser, Making Sense of New Technologies and Old Law: A New
Proposal for Historical Cell-Site Location Jurisprudence, 52
Santa Clara L. Rev. 572, 576 (2012) (describing congressional
fact-finding hearings on possible changes to the SCA). And some
state legislatures have recently enacted warrant requirements
for state agencies acquiring historical CSLI. See, e.g., Utah
Code Ann. § 77-23c-102 (West 2015), amended by 2016 Utah Laws
H.B. 369; N.H. Rev. Stat. Ann. § 644-A:2-A:3 (West 2015).
Legislatures manifestly can and are responding to changes in the
intersection of privacy and technology.
35
themselves to third parties in the course of carrying out
mundane tasks.” Jones, 132 S. Ct. at 957 (Sotomayor, J.,
concurring). Indeed, although the Court formulated the third-
party doctrine as an articulation of the reasonable-expectation-
of-privacy inquiry, it increasingly feels like an exception. A
per se rule that it is unreasonable to expect privacy in
information voluntarily disclosed to third parties seems
unmoored from current understandings of privacy. But Justice
Sotomayor also made clear that tailoring the Fourth Amendment to
“the digital age” would require the Supreme Court itself to
“reconsider” the third-party doctrine. Id.
The landscape would be different “if our Fourth Amendment
jurisprudence cease[d] to treat secrecy as a prerequisite for
privacy.” Id. But unless and until the Supreme Court so holds,
we are bound by the contours of the third-party doctrine as
articulated by the Court. See, e.g., Agostini v. Felton, 521
U.S. 203, 237 (1997) (reversing the Second Circuit but noting
that it had correctly applied then-governing law, explaining
that “if a precedent of this Court has direct application in a
case, yet appears to rest on reasons rejected in some other line
of decisions, the Court of Appeals should follow the case which
directly controls” (internal quotation marks, alteration, and
citation omitted)). Applying the third-party doctrine,
consistent with controlling precedent, we can only conclude that
36
the Fourth Amendment did not protect Sprint/Nextel’s records of
Defendants’ CSLI. Accordingly, we hold that the Government
legally acquired those records through § 2703(d) orders.
IV.
For the reasons set forth above, we affirm in all respects
the judgment of the district court.
AFFIRMED
37
WILKINSON, Circuit Judge, concurring:
I am pleased to concur in Judge Motz’s fine opinion. The
court rightly holds that obtaining historical cell site location
information (CSLI) from a third party cell phone provider is not
a search under the Fourth Amendment. Any result to the contrary
would be at odds with the Supreme Court and decisions from our
sister circuits. I write separately to emphasize my concern that
requiring probable cause and a warrant in circumstances such as
these needlessly supplants the considered efforts of Congress
with an ill-considered standard of our own.
Appellants appear to think that the Framers drafted the
Constitution with the judiciary alone in mind. I do not deny
that the judiciary has an important, indeed critical, role to
play in interpreting the Fourth Amendment. But I fear that by
effectively rewriting portions of a federal statute under the
guise of reasonableness review courts run the risk of boxing the
democratic branches out of the constitutional dialogue. For good
reason, developing constitutional meaning has always been a
collaborative enterprise among the three departments of
government. The present case offers a perfect example of why
that is so.
I.
In enacting Title II of the Electronic Communications
Privacy Act of 1986, popularly known as the Stored
38
Communications Act (SCA), 18 U.S.C. § 2701 et seq., Congress did
not behave in a flippant or haphazard fashion. Instead, it
crafted a thorough statutory framework limiting the government’s
ability to gather wire and electronic communication data from
communications service providers (here, Sprint/Nextel). The
SCA’s “comprehensive remedial scheme,” Kelley v. Fed. Bureau of
Investigation, 67 F. Supp. 3d 240, 271 (D.D.C. 2014), “creates a
set of Fourth Amendment-like privacy protections by statute,
regulating the relationship between government investigators and
service providers in possession of users’ private information.”
Sams v. Yahoo! Inc., 713 F.3d 1175, 1179 (9th Cir. 2013)
(quoting Orin S. Kerr, A User’s Guide to the Stored
Communications Act, and a Legislator’s Guide to Amending It, 72
Geo. Wash. L. Rev. 1208, 1212 (2004)).
At the heart of the SCA lies § 2703. That provision
establishes a calibrated set of procedural safeguards based on
the type and amount of information sought and the length of time
the records are stored. For instance, “only pursuant to a
warrant,” 18 U.S.C. § 2703(a), can the government obtain the
contents of a communication that is in electronic storage with a
service provider for 180 days or less. Alternatively, the
government has a number of options for compelling the disclosure
of non-content customer records, or the contents of
communications in electronic storage for more than 180 days:
39
“obtain[] a warrant,” id. §§ 2703(b)(1)(A), (c)(1)(A), “use[] an
administrative subpoena . . . or trial subpoena,” id.
§ 2703(b)(1)(B)(i), or “obtain[] a court order.”
Id. §§ 2703(b)(1)(B)(ii), (c)(1)(B).
Here, the government secured a court order for the
disclosure of non-content communication records (specifically,
CSLI) pursuant to § 2703(c)(1)(B). Congress set forth the
requirements for a valid court order in § 2703(d), which
mandates that the government supply “specific and articulable
facts showing that there are reasonable grounds to believe that
the contents of a wire or electronic communication, or the
records or other information sought, are relevant and material
to an ongoing criminal investigation.” Id. § 2703(d). In other
words, § 2703(d) “is essentially a reasonable suspicion
standard.” In re U.S. for an Order Pursuant to 18 U.S.C. Section
2703(d), 707 F.3d 283, 287 (4th Cir. 2013).
I see no reason to depart from Congress’s carefully
tailored scheme. As the majority points out, the SCA in fact
exceeds the constitutional floor established by the Supreme
Court, whose decisions hold that the Fourth Amendment does not
apply to information voluntarily conveyed to third parties. Ante
at 9-10; see, e.g., Smith v. Maryland, 442 U.S. 735, 743-44
(1979); United States v. Miller, 425 U.S. 435, 443 (1976).
Although appellants would insert their own impressions of the
40
Fourth Amendment into § 2703(d) by way of a warrant and probable
cause requirement, that approach not only aspires to overturn
Supreme Court rulings but to scuttle the laborious efforts of
the Congress to balance privacy and law enforcement interests in
a responsible way.
II.
It has long been the case that developing constitutional
meaning is not a responsibility that rests solely on the
shoulders of the judiciary. It has instead been “a power and
duty shared by all three branches, and its shared nature
suggests that it ought not be fulfilled by each branch acting
independently within its sphere of authority.” Dawn E. Johnsen,
Functional Departmentalism and Nonjudicial Interpretation: Who
Determines Constitutional Meaning?, 67 Law & Contemp. Probs.
105, 121 (2004). Formulation of constitutional guidance, in
other words, is a collaborative enterprise, “with each branch
encouraged to recognize its own institutional limitations and to
respect the superior competencies of the others.” Id. at 120. *
*My dissenting friend rightly lauds the function of
judicial review, see Marbury v. Madison, 5 U.S. 137, 178 (1803),
but effectively dismisses respect for Congress’s efforts as one
component of that review. See post at 65-66 n. 14. This, of
course, envisions a process where the judiciary speaks only to
itself, a curiously monologic exercise at odds with the
constitutional structure of American government.
Not to worry, says the dissent. All it is doing is
“eliminating a single line of statutory text, specifically 18
(Continued)
41
This principle applies with special force where Congress
has weighed in on the Fourth Amendment’s requirement of
“reasonableness.” That term, of course, “is not capable of
precise definition or mechanical application.” Bell v. Wolfish,
441 U.S. 520, 559 (1979). Faced with a term literally crying out
for balance between the competing interests of individual
privacy and societal security, it is appropriate to accord some
degree of deference to legislation weighing the utility of a
particular investigative method against the degree of intrusion
on individuals’ privacy interests. See United States v. Jones,
132 S. Ct. 945, 963-64 (2012) (Alito, J., concurring).
In this setting, Congress brings several cards to the
table. First, it enjoys a relatively greater degree of access
than courts to expert opinion generally and to the expertise of
the executive branch in particular. Trial courts, of course,
hear expert testimony all the time, but they are to a
considerable extent at the mercy of the parties whose witnesses
may be called to serve a narrow set of interests rather than the
interests of the public at large. Appellate amicus briefs and
U.S.C. § 2703(c)(1)(B).” Id. But “eliminating” a critical option
Congress has provided in favor of the dissent’s idea of what is
best for us is the kind of constitutional club that ends the
conversation and severely limits opportunities for legislative
reforms and responses in what is a rapidly evolving field.
42
arguments are helpful to be sure, but not enough, I think, to
close the expertise gap or compensate for the large differences
in size between congressional and judicial staffs. The more
technical the issue (as the one before us surely is), the more
salient the expertise differential may prove to be. It is not
surprising, then, that “[t]hroughout our history . . . it has
been Congress that has taken the lead in . . . balanc[ing] the
need for a new investigatory technique against the undesirable
consequences of any intrusion on constitutionally protected
interests in privacy.” Dalia v. United States, 441 U.S. 238, 264
(1979) (Stevens, J., dissenting). That tradition is a sound one,
for it not only reflects an understanding of our own
institutional limitations, but the value of having democratic
backing behind Fourth Amendment balancing.
Second, Congress is often better positioned to achieve
legal consistency. Abandoning Congress’s comprehensive effort
for particularized and improvised judicial standards invites
confusion into what has been a relatively stable area of the
law. See ante at 10-13. The SCA -- which remains “the primary
vehicle by which to address violations of privacy interests in
the communication field,” Adams v. City of Battle Creek, 250
F.3d 980, 986 (6th Cir. 2001) -- promotes uniformity by focusing
the courts’ inquiry on a prescribed set of conditions that must
be satisfied before disclosure will be compelled. See, e.g., 18
43
U.S.C. § 2703(d). Detailed statutory standards have at least as
fair a chance of achieving clear guidance and consistency as
court developed rules. Congress’s aim of consistency would be
imperiled, however, if courts become willing to strike this or
that portion of the statute to accommodate what may be their
unique privacy policy views. In my judgment, uniform national
standards rather than regional variations among the courts has
merit where Congress has comprehensively legislated in a
particular field.
Finally, Congress imparts the considerable power of
democratic legitimacy to a high stakes and highly controversial
area. The emergence of advanced communication technologies has
set off a race between criminal enterprises on the one hand and
law enforcement efforts on the other. Modern communication
devices -- even as they abet the government’s indigenous
tendencies to intrude upon our privacy -- also assist criminal
syndicates and terrorist cells in inflicting large-scale damage
upon civilian populations. Appellants’ strict standard of
probable cause and a warrant even for non-content information
held by third parties thus risks an imbalance of the most
dangerous sort, for it allows criminals to utilize the latest in
technological development to commit crime and hamstrings the
ability of law enforcement to capitalize upon those same
developments to prevent crime. The fact that the appellants in
44
this case were convicted of Hobbs Act violations and brandishing
offenses cannot obscure the implications of their proposed
standards for much more serious threats down the road.
In my view, striking a balance in an area rife with the
potential for mass casualty cannot leave democracy out in the
cold. Courts must continue to play a vital role in Fourth
Amendment interpretation, but in large matters of life and death
the people’s representatives must also play their part. See,
e.g., Donovan v. Dewey, 452 U.S. 594, 603 (1981) (Congress’s
authorization of warrantless inspections of surface and
underground mines deemed constitutional under the Fourth
Amendment in light of the “notorious history of serious
accidents” causing large loss of life in the mining industry).
It is naive, I think, for the judicial branch to assume
insensitivity to privacy concerns on the part of our elected
brethren. Just last year, for example, a bipartisan Congress
terminated the National Security Agency’s collection of bulk
phone records. Uniting and Strengthening America by Fulfilling
Rights and Ensuring Effective Discipline Over Monitoring Act of
2015 (USA Freedom Act), Pub. L. No. 114-23, 129 Stat. 268. Other
statutes make Congress’s privacy concerns abundantly clear. See,
e.g., Privacy Act of 1974, Pub. L. No. 93-579, 88 Stat. 1896
(codified at 5 U.S.C. § 552a (2012)); Omnibus Crime Control and
45
Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197
(codified as amended at 18 U.S.C. § 2510 et seq. (2012)).
It is human nature, I recognize, to want it all. But a
world of total privacy and perfect security no longer exists, if
indeed it ever did. We face a future of hard tradeoffs and
compromises, as life and privacy come simultaneously under
siege. How sad, near the very inception of this journey, for
appellants to adopt the most stringent of Fourth Amendment
standards, to discard the great values of democratic compromise,
and to displace altogether the legislative role.
46
WYNN, Circuit Judge, with whom FLOYD and THACKER, Circuit
Judges, join, dissenting in part and concurring in the judgment: 1
A customer buys a cell phone. She turns it on and puts it
in her pocket. With those acts, says the majority, she has
“voluntarily conveyed” an unbounded set of personal location
data to her service provider, all of which is unprotected by the
Fourth Amendment. Here, that included 221 days’ worth of
information, amounting to roughly 29,000 location-identifying
data points for each Defendant.
The majority further claims that “Supreme Court precedent
mandates this conclusion,” that “[l]ogic compels” it. Ante, at
5, 17. But those contentions are difficult to square with the
array of concurring and dissenting opinions that have already
been issued by federal appellate judges on this subject. 2 With
1 In accordance with the practice of my colleague, see
United States v. Graham, 796 F.3d 332, 378 n.1 (4th Cir. 2015)
(Motz, J., dissenting in part and concurring in the judgment), I
have styled this opinion as a partial dissent. Even though I
would affirm the Defendants’ convictions under the exclusionary
rule’s good-faith exception, I take issue with the majority’s
determination that there was no Fourth Amendment violation, a
conclusion which “will have profound consequences in future
cases in the Fourth Circuit.” Id.
2 Four other federal appellate courts have issued five
decisions considering as a matter of first impression the
applicability of the Fourth Amendment to CSLI, and those
decisions generated seven concurring or dissenting opinions.
See United States v. Carpenter, Nos. 14-1572, 14-1805, 2016 WL
1445183, at *1 (6th Cir. Apr. 13, 2016) (majority opinion); id.
at *11 (Stranch, J., concurring); United States v. Davis, 785
F.3d 498, 500 (11th Cir. 2015) (en banc) (majority opinion); id.
at 519 (W. Pryor, J., concurring); id. at 521 (Jordan, J.,
(Continued)
47
respect for the differing view of my colleagues in the majority,
this is not an easy issue. Not only that, but a close reading
of the Supreme Court’s third-party doctrine demonstrates that
cell site location information (CSLI) is not “voluntarily
conveyed” by cell phone users. It is therefore not beyond the
Fourth Amendment’s reach.
I.
A.
The third-party doctrine operates to bar Fourth Amendment
protection only for information that has been “voluntarily
conveyed” by an individual to a third party. The majority does
not dispute this limitation, see ante, at 10–11, 16–18, nor
could it. That phrase, or some slight variation of it, appears
without exception as a necessary analytical component in each of
the Supreme Court’s founding third-party doctrine cases. Smith
concurring); id. at 524 (Rosenbaum, J., concurring); id. at 533
(Martin, J., dissenting); United States v. Davis, 754 F.3d 1205
(11th Cir.) (unanimous), vacated, reh’g en banc granted, 573 F.
App’x 925 (11th Cir. 2014); In re Application of the U.S. for
Historical Cell Site Data, 724 F.3d 600, 602 (5th Cir. 2013) (In
re Application (Fifth Circuit)) (majority opinion); id. at 615
(Dennis, J., dissenting); In re Application of U.S. for an Order
Directing a Provider of Elec. Commc’n Serv. to Disclose Records
to Gov’t, 620 F.3d 304, 305 (3d Cir. 2010) (In re Application
(Third Circuit)) (majority opinion); id. at 319 (Tashima, J.,
concurring). The only unanimous panel held that the
government’s warrantless acquisition of CSLI constituted a
Fourth Amendment violation. Davis, 754 F.3d at 1215. No doubt,
when the votes are tallied, more now support the majority’s
position. But that should not decide this case.
48
v. Maryland, 442 U.S. 735, 744 (1979) (“When he used his phone,
petitioner voluntarily conveyed numerical information to the
telephone company . . . .” (emphasis added)); id. at 745
(“[P]etitioner voluntarily conveyed to [the phone company]
information that it had facilities for recording . . . .”
(emphasis added)); United States v. Miller, 425 U.S. 435, 442
(1976) (“All of the documents obtained, including financial
statements and deposit slips, contain only information
voluntarily conveyed to the banks . . . .” (emphasis added));
Hoffa v. United States, 385 U.S. 293, 302 (1966) (“Neither this
Court nor any member of it has ever expressed the view that the
Fourth Amendment protects a wrongdoer’s misplaced belief that a
person to whom he voluntarily confides his wrongdoing will not
reveal it.” (emphasis added)); Lewis v. United States, 385 U.S.
206, 212 (1966) (“[This case] presents no question of the
invasion of the privacy of a dwelling; the only statements
repeated were those that were willingly made to the agent and
the only things taken were the packets of marihuana voluntarily
transferred to him.” (emphasis added)); see also United States
v. White, 401 U.S. 745, 749 (1971) (no Fourth Amendment
protection where an individual “voluntarily confides his
wrongdoing” to another (quoting Hoffa, 385 U.S. at 302)).
The Supreme Court, then, has intentionally employed the
“voluntary conveyance” concept in every relevant case to limit
49
the reach of an otherwise sweeping per se rule that denies
Fourth Amendment protection. It seems therefore crucial here to
ask: what, precisely, did the Court mean when it chose those
words, in the context of those cases?
Here is what those various defendants actually did to
“voluntarily convey” information. One used his finger to dial,
one by one, the numerical digits of a telephone number. Smith,
442 U.S. at 741 (highlighting that pen registers disclose “only
the telephone numbers that have been dialed” (quoting United
States v. N.Y. Tel. Co., 434 U.S. 159, 167 (1977))). Another
submitted multiple checks and deposit slips—each presumably
bearing a date, a dollar amount, a recipient name, and a
personal signature. Miller, 425 U.S. at 442. The others
actually spoke. White, 401 U.S. at 746–47 (conversations with a
bugged government informant related to narcotics transactions);
Hoffa, 385 U.S. at 296 (statements to an associate “disclosing
endeavors to bribe [jury] members”); Lewis, 385 U.S. at 210
(conversations with an undercover law enforcement agent in the
course of executing a narcotics sale).
In all of these cases—the only cases that can bind us here—
“voluntary conveyance” meant at least two things. First, it
meant that the defendant knew he was communicating particular
information. We can easily assume Miller knew how much money he
was depositing, that Smith knew the numbers he was dialing, and
50
that Hoffa, Lewis, and White knew about the misconduct they
verbally described to another.
Second, “voluntary conveyance” meant that the defendant had
acted in some way to submit the particular information he knew.
Crucially, there was an action—depositing, dialing, speaking—
corresponding to each piece of submitted information. And where
many data pieces were compiled into records—financial records in
Miller, phone records in Smith—there was presumptively a
discrete action behind each piece of data. The Court never
suggested that the simple act of signing up for a bank account,
or a phone line, was enough to willingly turn over thousands of
pages of personal data.
These two components of “voluntary conveyance”—knowledge of
particular information and an action submitting that
information—were thus present in every “Supreme Court precedent”
that can “mandate[] [our] conclusion” here. Ante, at 5. Those
features also characterize the vast majority of cases where the
third-party doctrine has been applied by other federal courts.
When a credit card holder signs a receipt that includes the
address of the vendor, the bill amount, and the time of the
transaction, she both indicates her knowledge of that particular
51
information and acts to submit it. 3 Thus, courts have held that
the third-party doctrine applies to credit card records. E.g.,
United States v. Phibbs, 999 F.2d 1053, 1077-78 (6th Cir. 1993);
see also United States v. Maturo, 982 F.2d 57, 59 (2d Cir. 1992)
(credit card records admitted as evidence); United States v.
Kragness, 830 F.2d 842, 865 (8th Cir. 1987) (same).
When someone types “his name, email address, telephone
number, and physical address” into a form and then submits that
information to a service provider in order to secure internet
access, he not only has knowledge of the typed information but
has affirmatively acted to communicate it. United States v.
Bynum, 604 F.3d 161, 164 (4th Cir. 2010). Thus, courts have
held that the third-party doctrine applies to subscriber
3
The majority argues that reading “voluntary conveyance” to
require user knowledge would require courts “frequently . . . to
parse business records [such as credit card records] for indicia
of what an individual knew he conveyed to a third party.” Ante,
at 19 n.9. That argument is a bogeyman. Courts would not need
to “parse” credit card records to determine whether the
cardholder at a grocery knew he was conveying “the date and time
of his purchase or the store’s street address,” id., any more
than the Supreme Court had to “parse” Miller’s bank records to
determine whether he knew he was conveying the date, amount, or
recipient name that appeared on the checks he himself had
endorsed. That much was obvious from the nature of the record
and the transactions it reflected. Where user knowledge cannot
be easily ascertained in this manner, however, I would not force
an ill-fitting presumption of voluntariness in order to strip
Fourth Amendment protection from a defendant. See Ohio v.
Robinette, 519 U.S. 33, 40 (1996) (“[V]oluntariness is a
question of fact to be determined from all the circumstances.”
(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248–49
(1973))).
52
information. Id.; see also United States v. Perrine, 518 F.3d
1196, 1204 (10th Cir. 2008) (collecting cases).
When an internet user types a URL—which is uniquely linked
to a single IP address 4—into her web browser and hits the “Enter”
key, she knows the web address and she actively submits it.
Thus, although the law in this area is still unsettled, courts
have generally concluded that the third-party doctrine applies
to the IP addresses of visited websites. See, e.g., United
States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008) (“Like
telephone numbers . . . e-mail to/from addresses and IP
addresses are not merely passively conveyed through third party
equipment, but rather are voluntarily turned over in order to
direct the third party’s servers.”). 5
4 See United States v. Forrester, 512 F.3d 500, 510 n.5 (9th
Cir. 2008) (“Every computer or server connected to the Internet
has a unique IP address. A website typically has only one IP
address even though it may contain hundreds or thousands of
pages. For example, Google’s IP address is 209.85.129.104 and
the New York Times’ website’s IP address is 199.239.137.200.”).
5 One category of generally admitted third-party information
would not be “voluntarily conveyed” under my reading of that
requirement: phone records of incoming calls. See ante, at 20—
22. Perhaps one reason such information is routinely admitted
is that it is rarely challenged by defendants, since it is
outgoing call information that tends to be incriminating, as was
the case in the sole authority from this circuit cited by the
majority. See United States v. Clenney, 631 F.3d 658, 662 (4th
Cir. 2011) (investigator “confirmed through phone records that
[defendant’s] phone number was the source of outgoing calls”).
Regardless, it is an open question whether anyone could credibly
assert the infringement of a legitimate expectation of privacy
in the numbers dialed by someone else (as one can in her
(Continued)
53
It follows that knowledge of particular information and a
corresponding act transmitting that information have defined
“voluntary conveyance” in virtually every case espousing or
applying the third-party doctrine, and certainly in every case
that can bind us here. Those features describe traditional bank
records and phone records, hotel bills and airline miles
statements, email addresses and social media profile
information. This is a description—not a redefinition—of the
third-party doctrine. 6
B.
The foregoing discussion makes clear that CSLI is not
“voluntarily conveyed” by a cell phone user, and therefore is
not subject to the third-party doctrine.
movements over time, see infra section II). In other words, my
view of “voluntary conveyance” may not require excluding
warrantlessly procured incoming call information. Even if it
did, that would be a small price to pay for preserving the
substance of a constitutionally mandated limitation on the
third-party doctrine’s scope.
6 Indeed, it is the majority who has “improperly attempt[ed]
to redefine the third-party doctrine.” Ante, at 6; see also
ante, at 16, 20. The majority recasts the Supreme Court’s
“voluntary conveyance” language in a double negative, such that
“the third-party doctrine does not apply when an individual
involuntarily conveys information.” Ante, at 19 (first emphasis
added). The upshot of this approach is that the protections of
the Fourth Amendment are limited to situations where “the
government conducts surreptitious surveillance or when a third
party steals private information.” Id. While the majority
might prefer to preserve Fourth Amendment protection only for
information that is not coercively seized, that is not the
Supreme Court’s standard, and it should not be ours.
54
First, consider how little a cell phone user likely knows
about his CSLI. Unlike the deposit amounts in Miller and the
phone numbers in Smith, which were at various points made
obvious to the user “in the ordinary course of business,” Smith,
442 U.S. at 744, there is no reason to think that a cell phone
user is aware of his CSLI, or that he is conveying it. He does
not write it down on a piece of paper, like the dollar amount on
a deposit slip, or enter it into a device, as he does a phone
number before placing a call. Nor does CSLI subsequently appear
on a cell phone customer’s statement, as the relevant
information did for the banking customer in Miller and the phone
caller in Smith. See Smith, 442 U.S. at 742 (“All subscribers
realize . . . that the phone company has facilities for making
permanent records of the numbers they dial, [because] they see a
list of their . . . calls on their monthly bills.”).
Consequently, “it is unlikely that cell phone customers are
aware that their cell phone providers collect and store [CSLI].”
In re Application of U.S. for an Order Directing a Provider of
Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304,
317 (3d Cir. 2010) (In re Application (Third Circuit)). And
even if cell phone customers have a vague awareness that their
location affects the number of “bars” on their phone, see ante,
at 18, they surely do not know which cell phone tower their call
will be routed through, a fact even the government concedes.
55
Appellee’s Br. at 53 (“[T]he location of the cell phone tower
handling a customer’s call is generated internally by the phone
company and is not typically known by the customer.”). User
knowledge, the first component of “voluntary conveyance,” is
therefore essentially absent. 7
Second, consider what the cell phone user does—or does not
do—to transmit CSLI. As a general matter, “CSLI is purely a
function and product of cellular telephone technology, created
by the provider’s system network at the time that a cellular
telephone call connects to a cell site.” Commonwealth v.
Augustine, 4 N.E.3d 846, 862 (Mass. 2014). In some instances,
CSLI is produced when a user places an outgoing call, an action
7 The majority “fail[s] to see how a phone user could have a
reasonable expectation of privacy in something he does not
know.” Ante, at 19 n.9. I wonder: does the majority imagine
that Danny Kyllo knew what levels of infrared radiation emanated
from his home and were recorded with precision by the
government’s thermal imaging device? See Kyllo v. United States,
533 U.S. 27, 29–30 (2001). The rule that one must “know” what
one can reasonably expect to keep private is new to me, and I
believe to Fourth Amendment doctrine as well. It is also yet
another aspect of this Court’s present decision with troubling
future implications. I suppose we can also expect no privacy in
data transmitted by networked devices such as the “Fitbit”
bracelet, which “can track the steps you take in a day, calories
burned, and minutes asleep”; the “Scanadu Scout,” which can
“measure your temperature, heart rate, and hemoglobin levels”;
or the “Mimo Baby Monitor ‘onesie’ shirt,” which can “monitor
your baby's sleep habits, temperature, and breathing patterns.”
Scott R. Peppet, Regulating the Internet of Things: First Steps
Toward Managing Discrimination, Privacy, Security, and Consent,
93 Tex. L. Rev. 85, 88 (2014); see also infra note 8. Making
knowledge requisite to privacy is inconsistent not only with
Supreme Court precedent but with our basic societal norms.
56
that arguably corresponds with the generated information (even
if the user remains unaware of that information). However, CSLI
is also generated when a phone simply receives a call, even if
the user does not answer. In these instances, CSLI is
automatically generated by the service provider’s network,
without any user participation at all. See In re Application
(Third Circuit), 620 F.3d at 317–18 (“[W]hen a cell phone user
receives a call, he hasn’t voluntarily exposed anything at
all.”). 8
8 The majority does not take seriously this idea—that
information might be automatically generated without user
involvement. See ante, at 16 (“[T]here can be little question
that cell phone users ‘convey’ CSLI to their service providers.
After all, if they do not, then who does?”); id. (“Perhaps
Defendants believe that . . . the [service] provider just
conveys CSLI to itself.”). But even in the era of Miller and
Smith, human beings were not the only entities capable of
collecting and conveying information. That is also surely the
case now, and will only become increasingly relevant going
forward. See, e.g., Neil M. Richards, The Dangers of
Surveillance, 126 Harv. L. Rev. 1934, 1940 (2013) (“The
incentives for the collection and distribution of private data
are on the rise. The past fifteen years have seen the rise of
an Internet in which personal computers and smartphones have
been the dominant personal technologies. But the next fifteen
will likely herald the ‘Internet of Things,’ in which networked
controls, sensors, and data collectors will be increasingly
built into our appliances, cars, electric power grid, and homes,
enabling new conveniences but subjecting more and more
previously unobservable activity to electronic measurement,
observation, and control.”); Peppet, supra note 7, at 88–89.
Today, the majority saddles us with a rule that does not
distinguish between information an individual himself conveys
and information that computerized devices automatically record,
generate, and transmit. In other words, the majority’s
expansive interpretation of Miller and Smith will, with time,
(Continued)
57
In sum, because a cell phone customer neither possesses
knowledge of his CSLI nor acts to disclose it, I agree with the
Third Circuit that he “has not ‘voluntarily’ shared his location
information with a cellular provider in any meaningful way.”
Id. at 317; accord Augustine, 4 N.E.3d at 862; Tracey v. State,
152 So. 3d 504, 525 (Fla. 2014). 9
II.
Because CSLI is not voluntarily conveyed to service
providers, the third-party doctrine alone cannot resolve whether
the government here conducted a Fourth Amendment “search.” In
other words, there must be an independent evaluation of whether
“the government violates a subjective expectation of privacy
that society recognizes as reasonable” by acquiring large
gather momentum—with effects increasingly destructive of
privacy.
9 Because CSLI is not voluntarily conveyed by cell phone
users, I find it unnecessary to wade into the murky waters that
separate “content” from “non-content” information. The point of
the “content” designation, as recognized by the Supreme Court,
is that even some information that is voluntarily conveyed to
(or routed through) third parties is nevertheless protected by
the Fourth Amendment. For example, even though one voluntarily
conveys information by speaking into a public telephone
receiver, “the contents of [those] communications” are
protected. Smith, 442 U.S. at 741. The voluntarily conveyed
content contained in a letter, Ex parte Jackson, 96 U.S. 727,
733 (1877), or in the body of an e-mail, United States v.
Warshak, 631 F.3d 266, 288 (6th Cir. 2010), is protected, too.
But where the information in question was never voluntarily
conveyed in the first place, the third-party doctrine should
have no application, even if that information is deemed “non-
content.”
58
amounts of CSLI. Kyllo v. United States, 533 U.S. 27, 33 (2001)
(citing Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan,
J., concurring)). To answer that question, an examination is
warranted of both the quality and quantity of the information
the government here acquired.
The government obtained 221 days of CSLI for each
Defendant. 10 That amounted to 29,659 location data points for
Graham (an average of 134 data location points per day) and
28,410 location data points for Jordan (an average of 129
location points per day). Each piece of data revealed not only
the particular cell tower through which the relevant call was
routed, but also a particular 120-degree sector—or one-third
“slice”—within that cell tower’s range. The record indicates
that the cell sites at issue in this case covered a circular
area with a radius no larger than two miles. But given the
density of cell sites in urban areas like Baltimore, where
Sprint/Nextel operates 79 cell sites within the city limits and
many more in Baltimore County, the relevant cell site area was
likely far more precise for much of the location data obtained.
10 This CSLI acquisition far eclipses any a federal
appellate court has previously approved. Cf. Carpenter, 2016 WL
1445183, at *3 (considering two CSLI acquisitions, for separate
defendants, spanning 88 and 127 days); Davis, 785 F.3d at 515
(CSLI acquisition spanning 67 days); In re Application (Fifth
Circuit), 724 F.3d at 608 n.9 (CSLI acquisition spanning 60
days).
59
The records reveal extensive details about Defendants’ locations
and movements throughout the seven months-long period. For
Graham, over two thousand calls were initiated and terminated in
different cell site sectors, indicating movement during the
call. Some days offer particularly telling data. For example,
during one 38-hour period in October 2010, Graham made and
received 209 calls located in 55 different cell site sectors.
In United States v. Jones, 132 S. Ct. 945 (2012), the
Supreme Court unanimously held that the government’s
installation of a GPS device on a suspect’s vehicle and its use
of that device to track the vehicle’s movements over a 28-day
period violated the Fourth Amendment. See id. at 949, 954; id.
at 964 (Alito, J., concurring in the judgment). A majority of
the Court agreed that “longer term GPS monitoring in
investigations of most offenses impinges on expectations of
privacy.” Id. at 955 (Sotomayor, J., concurring); id. at 964
(Alito, J., concurring in the judgment). 11 That conclusion was
rooted in concerns about the government’s ability to capture
data describing an individual’s movements and aggregate that
11
That is, five Justices agreed that longer-term location
monitoring could violate an individual’s reasonable expectation
of privacy. Although the majority opinion was grounded in a
trespass-based rationale, see id. at 949, it made clear that
“[s]ituations involving merely the transmission of electronic
signals without trespass would remain subject to [reasonable
expectation of privacy] analysis,” id. at 953.
60
data “to ascertain, more or less at will,” private information
about an individual, such as her “political and religious
beliefs, sexual habits, and so on.” Id. at 956 (Sotomayor, J.,
concurring). While the Justices left it an open question how
long location surveillance could occur before triggering Fourth
Amendment protection, Justice Alito clarified that “the line was
surely crossed before the 4–week mark.” Id. at 964.
Here, we confront a locational data set that is on the
whole more invasive than the one considered in Jones.
Admittedly, the CSLI acquired here, which could trace an
individual to a neighborhood even if not to a specific address,
was less precise than the GPS tracking information in Jones.
“But precision is not the only variable with legal
significance.” United States v. Carpenter, Nos. 14-1572, 14-
1805, 2016 WL 1445183, at *12 (6th Cir. Apr. 13, 2016) (Stranch,
J., concurring). Quantity matters, too. And in my view, the
sheer volume of data the government acquired here decides this
case. 12
12
The majority wonders “why . . . only large quantities of
CSLI [would] be protected by the Fourth Amendment.” Ante, at
29. That is a fair question to ask of Defendants, who maintain
that even smaller amounts of CSLI can be used to peer “into the
home.” Appellants’ Br. at 20. In my view, however, the CSLI
utilized here was not precise enough to implicate an
individual’s privacy interest in the home’s interior. See
United States v. Karo, 468 U.S. 705, 714–16 (1984).
Consequently, I consider the main privacy expectation infringed
(Continued)
61
Whereas the Supreme Court deemed the government’s
collection of 28 days of location data unconstitutional, the
data challenged here spans 221 days—nearly eight times the
surveillance period evaluated in Jones. The Eleventh Circuit
concluded that a 67-day set of CSLI could “[w]ithout question
. . . when closely analyzed, reveal certain patterns with regard
to [the defendant’s] physical location in the general vicinity
of his home, work, and indeed the robbery locations.” United
States v. Davis, 785 F.3d 498, 516 (11th Cir. 2015) (en banc).
I have little trouble concluding that the close analysis of a
221-day CSLI set would reveal much more, potentially “enabl[ing]
the Government to ascertain, more or less at will, [an
individual’s] political and religious beliefs, sexual habits,
and so on.” Jones, 132 S. Ct. at 956 (Sotomayor, J.,
concurring).
here to be in Defendants’ movements over an extended period of
time, which necessarily requires examining the quantity of data
obtained. Furthermore, I agree that “[i]ntrinsic to the [third-
party] doctrine is an assumption that the quantity of
information an individual shares . . . does not affect whether
that individual has a reasonable expectation of privacy.” Ante,
at 32. That is, in part, why the majority’s holding is so
troublingly broad. See infra section III. But having
determined that CSLI is not voluntarily conveyed, and thus that
the third-party doctrine does not decide this case, I must
evaluate separately whether a reasonable expectation of privacy
has been infringed. Because the basis for my decision is
extrinsic to the third-party doctrine, it is natural that I
would not be bound by an “intrinsic . . . assumption” of that
doctrine.
62
By acquiring vast quantities of Defendants’ location
information, spanning months, without Defendants’ consent, the
government infringed their reasonable expectations of privacy
and thereby engaged in a search. Because that search was
warrantless, it violated the Fourth Amendment. 13
III.
Even more disquieting to me than the result the majority
has reached today is the path it has chosen to reach it.
The majority does not decide, for instance, as did the
Third Circuit, that the CSLI employed here was too imprecise or
too discontinuous to infringe Defendants’ privacy. See In re
Application (Third Circuit), 620 F.3d at 312–13. That narrower
holding would have allowed this Court to grapple, in the future,
with the effect of rapidly changing phone technology, like the
increasing “proliferation of smaller and smaller [cell sites]
such as microcells, picocells, and femtocells—which cover a very
specific area, such as one floor of a building, the waiting room
of an office, or a single home,” In re Application for Tel.
Info. Needed for a Criminal Investigation, 119 F. Supp. 3d 1011,
13“[A]s a general matter, warrantless searches ‘are per se
unreasonable under the Fourth Amendment . . . .’” City of
Ontario, Cal. v. Quon, 560 U.S. 746, 760 (2010) (quoting Katz,
389 U.S. at 357). In my view, none of the “few specifically
established and well-delineated exceptions” to that rule apply
here. Id.
63
1023 (N.D. Cal. 2015), or the advent of smartphone “pinging,”
whereby location data can be generated almost continuously, see,
e.g., In re Application of U.S. for an Order Authorizing
Disclosure of Location Info. of a Specified Wireless Tel., 849
F. Supp. 2d 526, 534 (D. Md. 2011). Rather, the majority
concedes what follows unavoidably from its holding: “the
applicability of the Fourth Amendment [does not] hinge[] on the
precision of CSLI,” ante, at 9 n.3, or on its quantity, ante, at
32. The Supreme Court has cautioned that “[w]hile the
technology used in the present case [may be] relatively crude,
the rule we adopt must take account of more sophisticated
systems that are already in use or in development.” Kyllo, 533
U.S. at 36. Suppose the same case arises in two years, now
featuring months of GPS-pinpointed location data, down to the
second. Apply the majority’s rule. Same result.
Neither does the majority hold, as the Eleventh Circuit did
in the alternative, that the court order required by 18 U.S.C.
§ 2703(d), though less than a warrant backed by probable cause,
nevertheless satisfied the Fourth Amendment’s reasonableness
“touchstone.” See Davis, 785 F.3d at 516–18; id. at 521–24
(Jordan, J., concurring). That holding would have at least
preserved a modicum of Fourth Amendment protection for the
location data at issue here, requiring an evaluation of the
relevant statutory provision that “assess[es], on the one hand,
64
the degree to which [the search] intrudes upon an individual's
privacy and, on the other, the degree to which it is needed for
the promotion of legitimate governmental interests.” Id. at 517
(quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). If
that were the Court’s holding, then the majority’s token
assurances that “Congress . . . has not been asleep at the
switch,” ante, at 35, and my concurring colleague’s laudatory
musings about Congress’s “striking a balance in an area rife
with the potential for mass casualty,” ante, at 45, might do
more than salve our judicial consciences: they would actually be
doctrinally relevant. 14 But as it is, Congress could repeal the
14
My concurring colleague joins the majority based on his
“fear that by effectively rewriting portions of a federal
statute under the guise of reasonableness review courts run the
risk of boxing the democratic branches out of the constitutional
dialogue.” Ante, at 38. If that is truly the grounds for his
concurrence, I hope my friend understands that the majority’s
opinion today will be the last word spoken in that “dialogue.”
It is a conversation ender. Following today’s decision, the
judiciary will have absolutely no role in articulating what
protections the Fourth Amendment requires for private
information that is not either directly gathered by the
government or secretively stolen by third parties. We have thus
avoided “boxing out” the other branches, but only at the cost of
boxing out ourselves. So much for a “collaborative enterprise
among the three departments of government.” Ante, at 38. By
the way, the statutory “rewriting” my colleague fears would
require eliminating a single line of statutory text,
specifically 18 U.S.C. § 2703(c)(1)(B). The efficiency of that
modification is possible because Congress, as my colleague
recognizes, provided in its “carefully tailored scheme,” ante,
at 40, that the government could acquire non-content customer
information by obtaining a warrant. 18 U.S.C. § 2703(c)(1)(A).
One wonders whether Congress itself might have anticipated the
(Continued)
65
SCA and the ECPA tomorrow. Apply the majority’s rule. Same
result.
What this elucidates is the extraordinary breadth of the
majority’s decision today. It is not bounded by the relative
precision of location data, by the frequency with which it is
collected, or by the statutory safeguards Congress has thought
it prudent to enact. The majority’s holding, under the guise of
humble service to Supreme Court precedent, markedly advances the
frontlines of the third-party doctrine. The Fourth Amendment,
necessarily, is in retreat.
IV.
Only time will tell whether our society will prove capable
of preserving age-old privacy protections in this increasingly
networked era. But one thing is sure: this Court’s decision
today will do nothing to advance that effort. I dissent.
potential for a contrary decision today. Finally, although I
appreciate my colleague’s civics lesson on the institutional
competencies of Congress, I would remind him of one of our own:
judicial review. See Marbury v. Madison, 5 U.S. 137, 178
(1803).
66
United States v. Aaron Graham
Court: Court of Appeals for the Fourth Circuit
Date filed: 2016-05-31
Citations: 824 F.3d 421, 2016 WL 3068018
Copy CitationsCombined Opinion