Fourth Circuit Reverses Graham: No Warrant Required for Historical Cell Site Location Information

Last year, a panel of the Fourth Circuit decided United States v. Graham, 796 F.3d 332 (4th Cir. 2015). The panel ruled that “the government conducts a search under the Fourth Amendment when it obtains and inspects a cell phone user’s historical [cell site location information (CSLI)] for an extended period of time. . . . Its inspection by the government, therefore, requires a warrant, unless an established exception to the warrant requirement applies.” I discussed Graham here and here. Last week, the en banc Fourth Circuit reversed the panel, ruling that under the third-party doctrine, a cell phone subscriber has no reasonable expectation of privacy in historical cell site location information that he or she shares with a service provider, so it isn’t a Fourth Amendment “search” when law enforcement obtains such information, and a warrant isn’t required. The en banc opinion is here. This post discusses the opinion and considers the possibility of Supreme Court review or action by Congress. Facts. Defendants Graham and Jordan committed a string of armed robberies of Baltimore businesses. They were arrested as they drove away from one of the crimes. Their cell phones were in the truck they occupied. In an effort to link the defendants to the other robberies, officers sought court orders under 18 U.S.C. § 2703(d), a provision in the federal Stored Communications Act, for historical records regarding the phones. Under the statute, such orders may be issued based on a showing akin to reasonable suspicion and less than probable cause. [...]