United States v. Graham

Here is another interesting submission from one of our staff editors to engage all in though for this summer.  The below submission discusses historical cellular cite location data and its implications on the Fourth Amendment.

Special thanks for this submission goes to Chelsea Gilbertson, one of our staff editors.  As always, CLR greatly appreciates the hard work of our editors and their submissions.

United States v. Graham

In United States v. Graham, the court decided an issue of first impression regarding whether historical cell site location data violates the right to privacy as protected by the Fourth Amendment of the constitution. 846 F. Supp. 2d 384, 387 (D. Md. 2012).  The defendants in the case were involved in a series of robberies and volunteered their cellular phone numbers subsequent to their arrests.  Id.  at 386.  Under the Stored Communications Act (SCA), 18 U.S.C. §§ 2701, et seq., the government obtained a warrant obligating Sprint/Nextel Inc.  to disclose the locations of the cellular towers associated with the defendants’ cellphone activity. Id.  Through the use of such warrants, the defendants were charged with several criminal counts including conspiracy to commit robbery. Id.  Defendants appealed the admissibility of the evidence collected under Historical Cell Site Location Data. Id.  Defendants made a challenge to the use of historical cell site location data in furtherance of the prosecution’s case against them. Id.

The issuing judges in this case both granted the first warrant under the SCA and the second for the cell site location using the standard under the SCA, “finding that the government ‘offered specific and articulable facts showing that there are reasonable grounds’” that the information they sought was relevant to the on-going investigation. Id. at 386-87.  The defendants did not challenge the constitutionality of the SCA, rather they argue using the lower standard of “specific and articulable,” instead of probable cause violates their Fourth Amendment right to privacy. Id.

First, the prosecution rebutted that the defendants lacked standing.  They argued one of the defendants provided a fictitious name to the cellular provider; hence, he cannot claim an expectation of privacy. Id. at 397.  Moreover, the government argued that the actual party in interest is Sprint/Nextel Inc., as they have possession of the information. Id.

The court applied the third party standard first articulated in the Fourth Circuit in the past. Id. at 400.  The court cited precedent where it had applied the third party doctrine to Internet subscriber information and found there was no reasonable expectation of privacy for those customers and their information. Id at 399.  Accordingly,  customers who voluntarily turn over their information to a third party have no reasonable expectation of privacy. Id at 399-400.

The government’s third argument is that historical cell site location does not require probable cause.  As applied under the CSA, only the lower standard of “specific and articulable facts” is required. Id. at 388.  Defense countered that the information gathered under cell site location data is collected retroactively and over an extended period of time, thereby making the process unconstitutional.  The Court found  issue with aggregation under the mosaic theory of surveillance. Id. at 402.  The Court articulated its concern that by aggregating multiple acts of surveillance, it can render surveillance unconstitutional that was previously, and would otherwise remain, constitutional. Id. at 402-403.

The Court also looked at the theories from other courts, like the Eastern District of New York and the Southern District of Texas, which suggest that “under certain circumstances, applications seeking cell site location data must be granted only after a showing of probable cause. Id. at 388.  Finally, the Court sided with only applying the SCA’s lower standard, regardless of the period of time in question. Id. at 389.

The government argued in the alternative that even if the Court were to find that this use of historical cell site location data collected is unconstitutional, it should not be suppressed because it was collected in good faith.

The court concluded by applying the third party standard and the lower standard of specific and articulable facts to the collection of historical cell site location data., which did not violate the defendants’ Fourth Amendment right to privacy. Id. at 404.


We want to hear your opinions on this and other privacy issues recently discussed on the blog.