published Saturday, April 26th, 2014

Federal appeals court weighs police use of cellphone tower data

MIAMI — In the latest challenge over digital age technology and privacy rights, a federal appeals court wrestled Friday with the authority of law enforcement to obtain and use records from cellphone towers, which reel in a treasure trove of user information every minute and can link suspects to crime scenes.

In Quartavious Davis' case, authorities obtained from cellphone companies more than 11,000 tower location records spanning 67 days, some of which placed his phone near Miami-area stores hit by a string of robberies in 2010. Davis, 22, is serving a 162-year prison sentence.

The American Civil Liberties Union and other groups say it's too easy for law enforcement officials to get cell tower records and argue that they should be protected by the Fourth Amendment's ban on unreasonable searches and seizures.

"This provides the government with a time machine it has never had before," ACLU attorney Nathan Wessler told the three-judge panel of the 11th U.S. Circuit Court of Appeals. "It's a great wealth of information about your private life."

Current law allows authorities to simply tell a judge the cellphone information is relevant to their investigation for a court order. The ACLU wants a higher legal standard, with investigators required to show probable cause that a crime was or is being committed and obtain a search warrant.

The case follows recent disclosures that U.S. intelligence agencies, including the National Security Agency, routinely scoop up cellphone communications across a broad spectrum of Americans. And cellphone-tower cases have resulted in split verdicts in two other federal appeals courts. It's likely one will wind up before the U.S. Supreme Court, which ruled in 2012 that global-positioning tracking devices attached to suspects' cars constituted a search subject to Fourth Amendment protections.

A judge at Friday's hearing said he sees similarities between that ruling and the cellphone case.

"Why isn't that at least as much an invasion of privacy as a GPS driving down the highway?" Circuit Judge David Sentelle, sitting as a guest judge, asked about cellphone data.

Assistant U.S. Attorney Roy Altman argued that the cellphone tracking is different because it is not collected in real time and because there is no expectation of privacy, with the records already in the hands of a third party: the cellphone company. People are generally aware their phones can keep track of their movements, Altman said.

"You don't have a reasonable expectation of privacy in that instance," he said.

In Davis' case, other evidence — including DNA and testimony from fellow gang members — was used, but prosecutors relied heavily on the cell tower records in closing arguments to the jury. Davis was the only one of six men charged who went to trial, with the others pleading guilty. Judges had no discretion in his sentence because of minimum mandatory requirements, which many defense attorneys decry as unduly harsh punishment.

Some of the gang had already been charged and arrested when prosecutors obtained the court order on Feb. 2, 2011, to gain access to Davis' cellphone tower records. He was added to a new indictment about two weeks later.

If the courts ultimately find that a warrant should be necessary to obtain cell tower records, it should not affect Davis' case, Altman said. He cited the "good faith" exception for law enforcement — if authorities relied on a law that is later found unconstitutional, they shouldn't be punished for it.

It will likely be weeks or months before the panel rules. Meanwhile, Wessler said yet another cellphone tower records case is winding its way toward a hearing in a fourth federal appeals court.

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