By Nate Freed Wessler, Staff Attorney, ACLU Speech, Privacy & Technology Project
In a tremendous step forward for our right to privacy under the Fourth Amendment, the Eleventh Circuit Court of Appeals has held in United States v. Quartavious Davis that police need a warrant to obtain historical cell phone location information from a cell service provider. The ACLU filed an amicus brief in the case, along with the ACLU of Florida, Electronic Frontier Foundation, Center for Democracy & Technology, and National Association of Criminal Defense Lawyers. In April, I argued the cell phone tracking issue before a three-judge panel of the court.
This ruling is the first time a federal appeals court has held that the Fourth Amendment requires a warrant when police seek cell phone location records from carriers. As the court concluded: “In short, we hold that cell site location information is within the subscriber’s reasonable expectation of privacy. The obtaining of that data without a warrant is a Fourth Amendment violation.”


We have previously explained just how invasive the cell phone tracking was in this case: law enforcement obtained 67 days’ worth of historical cell phone location records about the defendant, which revealed more than 11,000 individual location points. The court recognized the sensitivity of this data, writing that

the exposure of the cell site location information can convert what would otherwise be a private event into a public one. When one’s whereabouts are not public, then one may have a reasonable expectation of privacy in those whereabouts.

Thus, the court continued,

even one point of cell site location data can be within a reasonable expectation of privacy. . . . There is a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute.

The court also rejected the government’s argument that people lose their privacy interest in their location data merely by signing up for cell phone service and using their phone. Agreeing with the Third Circuit’s view on this question, the court held that the defendant “has not voluntarily disclosed his cell site location information to the provider in such a fashion as to lose his reasonable expectation of privacy.” In support of this conclusion, the court relied on the government’s own words:

The prosecutor stated to the jury “that obviously Willie Smith, like [Davis], probably had no idea that by bringing their cell phones with them to these robberies, they were allowing [their cell service provider] and now all of you to follow their movements on the days and at the times of the robberies . . . .”

“Just so,” wrote the court.
By rejecting application of the so-called “third party doctrine” in this context, the court offers a serious defense of the vitality of Fourth Amendment privacy rights in the digital age.
Sadly, the Eleventh Circuit’s opinion does not benefit the defendant in the case, because the court determined that law enforcement relied in good faith on the decision of a magistrate judge to issue an order authorizing the cell phone tracking. (The order was issued pursuant to a provision of the Stored Communications Act under a low relevance and materiality standard). Mr. Davis’s unconscionable longer-than-life sentence will stand.
But in future cases, the government is now on notice that it must get a warrant before obtaining cell phone location information. The court’s opinion is binding law within the Eleventh Circuit, which comprises Florida, Georgia, and Alabama. Elsewhere in the country it should constitute persuasive authority, joining similar opinions from the New Jersey and Massachusetts Supreme Courts. Cases raising the same issues are now on appeal to the Fourth and Sixth Circuits, and more will soon follow elsewhere in the country.
The court’s unequivocal opinion should also provide guidance to lawmakers grappling with electronic privacy issues. Across the country, states have been considering legislation to require a probable cause warrant before law enforcement tracks location in criminal investigations. The biggest sticking point this legislative session has been whether those bills should cover historical and real-time location information, or just real-time tracking. There are a number of sound public policy reasons why legislatures should adopt comprehensive bills, and the Eleventh Circuit’s decision provides a persuasive explanation of why the Fourth Amendment requires that outcome. Legislators now have the opportunity to lead by enacting privacy protections for their constituents—even before abuses reach their courthouses.
This post originally appeared on ACLU National's Blog of Rights.

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Thursday, June 12, 2014 - 10:15am

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By Maria Rodriguez, Executive Director, Florida Immigrant Coalition


Today's signing of a Florida law allowing young undocumented immigrants and U.S. citizen children of immigrant parents to pay the same tuition rate as every other Florida resident represents a truly remarkable achievement. It will change the lives of young immigrants like Carlos, who is twenty years old, undocumented, and comes from a family of agricultural workers.

A month ago, Carlos and I were sitting outside the Florida Senate Chamber, waiting for the tuition bill to be heard. As we passed the time, Carlos told me about himself, and admitted that someday he hoped to be a legislator. When I asked him what issues he would champion, Carlos couldn't believe I had asked such a question, "Are you serious? he said, "Poverty, of course!"

Carlos told me about his childhood and what getting an education signified for him. "I grew up dirt poor," he said, and then he recounted the exact moment he realized he wanted to go to college. He was 11 years old and picking tobacco in North Carolina – that's right, only eleven years old. This was after he'd already harvested onions in Florida, and before he headed to Michigan with his family to pick apples. He remembers thinking as he stood in the fields, "This is not for me, there's got to be more." Education was his path to opportunity and that path will now be open to many more students like him in Florida, taking them one step closer to fulfilling their dreams.

It's remarkable how far Carlos and those who fought for this alongside him have come.

The governor who signed this bill is the same Tea Party governor whose administration tried to kick a group of Latinos off the voter rolls and who in 2011 campaigned on bringing an Arizona bill to Florida, which immigrants and their supporters barely, but successfully fought off. About this time last year, he evenvetoed a modest bill easing the way for DREAMers granted deferred action to obtain state driver's licenses, a measure every senator in his own party had approved on a 36-0 vote. Back then, things looked very bleak.

In the end, it doesn't really matter whether Governor Rick Scott's turnaround was driven by a change in heart or a calculated need to court the Latino vote in advance of a contested bid for reelection. We welcome his transformation on this issue regardless of its motive. Governor Scott and some of his fellow Republicans share in the credit for advancing a policy that is long overdue and which will contribute to Florida's economy and vitality. Expanding access to higher education for children in immigrant families will reduce high school drop-out rates, improve educational achievement, reduce disparities and increase diversity in many professions.

Up until now, Florida had been the state with by far the largest number of immigrants that lacked an equitable tuition policy. Until recently, even U.S. citizens were being denied the ability to pay the in-state tuition rate, due to their parents' immigration status. Currently, twenty other states allow undocumented youth who are residents to pay in-state tuition at their colleges and universities. Now, Florida will join those states adding to the momentum to establish tuition equity policies for Dreamers nationwide.

Tonight will be a sleepless night for me, for Carlos, and for many young immigrants, who can now envision victory in future fights for immigrant rights in Florida and, like Carlos, may even have a hand in making the laws to win them.

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Tuesday, June 10, 2014 - 11:44am

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