A U.S. appeals court is wrestling with whether law enforcement has the authority to obtain and use records from cellphone towers, in a case that weighs the importance of people's right to privacy in the age of digital technology.
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 covered by the ban on unreasonable searches and seizures, which is protected by the Fourth Amendment of the U.S. Constitution. Current law allows authorities to obtain a court order by telling a judge the cellphone information is relevant to their investigation. The ACLU is seeking a higher legal standard, with investigators required to show probable cause that a crime was committed, and obtain a search warrant.
"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 on Friday. "It's a great wealth of information about your private life."
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 in 2012 ruled that attaching global-positioning tracking devices to suspects' cars was a breach of privacy.
The latest case stems from an appeal by 22-year-old Quartavious Davis, who is serving a 162-year sentence for a string of robberies in 2010. He was convicted in part because authorities obtained from cellphone companies more than 11,000 tower location records spanning 67 days, some of which placed his phone near stores in the Miami area where the robberies occurred.
In Davis' case, other evidence—including DNA and testimony from fellow gang members—was used to convict him, 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 deciding 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, Assistant U.S. Attorney Roy Altman argued. 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 another federal appeals court.
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