The US Federal Appeals Court for the Fifth Circuit unanimously ruled that police searches using location data from any cell phone are unconstitutional. This type of dragnet search is a violation of the Fourth Amendment of the US Constitution, which prohibits arbitrary searches. Civil rights activists such as the Electronic Frontier Foundation (EFF) welcome this decision, with which the court deliberately goes against the Fourth Circuit. So-called geofence warrants are considered permissible there.
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Reason for the current decision United States v. Smith et al (Af. 23-60321) is an attack on a US postal truck in Mississippi in February 2018. In November 2018, the postal police used a then relatively new method to obtain a court search warrant against Google. The data company then had to report which Android cell phones with active location history were in an area of ​​​​about 100,000 square meters around the crime scene during a certain hour on the day of the attack. Location recording is not enabled in Android’s default settings.
To do this, Google must search the location histories of all Android users worldwide. Because the company receives thousands of such orders each year, this takes a few months. In addition, spatial delimitation is not always possible with precision. The hits are then examined and enriched with data from mobile operators and other sources. In April 2019, Google provided identification numbers for three Android devices that had been located in an area of ​​about 328,000 square meters at the time (one using GPS, two using WiFi data). Two of these eventually led investigators to two individuals; a witness later identified one of the two. Both suspects and a third man were eventually convicted of the attack.
Brief: Federal Administrative Court suspends banUnconstitutional, but no restriction on evidence in specific case
They fought against this decision with the argument that the search of the location history of all Android accounts is a violation of the Fourth Amendment of the US Constitution, which is why the evidence obtained from it should not have been used in the proceedings. The federal appeals court now partially agrees with them: Android users are likely to assume that their location data history will remain secret. The Fourth Amendment of the US Constitution is originally designed as a protection against state fishing in the form of unrestricted searches (general warrants). Therefore, search warrants that target the location data of virtually everyone are “categorically excluded.”
However, the postal police acted in good faith in the legality of their actions at the time, which is why the use of the evidence was permitted. This means that the convictions of the three men remain. However, future investigations in Louisiana, Mississippi and Texas will no longer be allowed to use this version of a dragnet search with a query of the location history of all Android cell phones – unless the US Supreme Court decides otherwise.
Dissent: Fourth Circuit
It’s highly unlikely that he’ll tackle the issue on the occasion of this or any other case. In July, the U.S. Court of Appeals for the Fourth Circuit ruled 2-1 that blocking voting on all Android phones for a two-hour period was not a privacy violation (United States v. ChatryReference 22-4489). This means that a judicial search warrant is not even necessary. Chatry has requested a new review by an expanded bench of the same court, but has no legal authority to do so. The Fourth Circuit includes Maryland, North and South Carolina, and Virginia and West Virginia.
Thus, there are two diametrically opposite decisions of federal appeals courts, which significantly increases the likelihood of debate before the US Supreme Court (SCOTUS). In addition, in recent years SCOTUS has overturned a particularly large number of decisions of the Fifth Circuit, whose court is considered the most conservative in the country. At the same time, the decision of the Fourth Circuit may contradict an earlier SCOTUS conclusion: in the case Carpenter v. United States The Supreme Court has held that investigators are allowed to obtain cell phone location data from mobile network operators only using a warrant. To issue a warrant, prosecutors must already have other information that proves concrete suspicion of a crime. US courts should therefore not issue a search warrant to monitor any cell phone whose owner there is no concrete suspicion of.
The case is currently before the Minnesota Supreme Court State v. Contreras-Sanchez (Ref. A22-1579) pending. There, Google investigators wanted to know which Android cell phones drove down a specific street during an entire month. Google eventually handed over data for one week. The EFF is participating in the proceedings and argues that the broad data analysis of all Android cell phones around the world is a violation of the Minnesota Constitution and the Fourth Amendment of the US Constitution. The current decision from the Fifth Circuit may help.
(DS)
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