We have posted on the topic of whether and how the government can use cell phone location information as a means of tracking your location, most recently in connection with the use by law enforcement of “Stingray” devices. Now in its refusal to hear an appeal of a Florida criminal conviction the U.S. Supreme Court has effectively held that it is not necessary for police to obtain a warrant to obtain that information.
The underlying case involved the conviction of a man based in part on using records from his cellphone carrier to place him in the vicinity of a series of robberies. On appeal to the U.S. 11th Circuit Court of Appeals the convicted individual claimed that the gathering of that information without obtaining a warrant beforehand violated his rights under the U.S. Constitution, specifically his right to privacy. Although a panel of appeals court judges initially agreed with him, the government requested that the entire 11th Circuit hear the case en banc, and when all of the judges voted on the matter they sided with the government’s position that no warrant was necessary because under the applicable law (the Stored Communications Act) securing a court order to gain access to cellphone location data is sufficient.
The refusal of the U.S. Supreme Court to consider the case on further appeal means that — for the time being, at least — in Florida the police can obtain your cellphone location data without a warrant and can use that data against you as evidence in a criminal prosecution. The matter is not dead, however, because another U.S. Circuit Court of Appeals — the 4th Circuit — has ruled differently from the 11th Circuit on the same question, setting up the possibility for the Supreme Court to take up the matter in the future to resolve the difference of opinion between the two circuits.
In the meantime, if you are subject to a criminal prosecution in Florida and the government seeks to use cellphone location data against you, your criminal defense attorney will still be able to see to it that the police at least complied with the court order requirement to obtain the data beforehand.
Source: PC World, “Supreme Court won’t hear appeal on privacy of cellphone location data,” Stephen Lawson, Nov. 10, 2015