The Supreme Court declined on Monday to hear a challenge concerning digital privacy and cell phone location records as several proposed bills on the issue remain stalled in Congress.
Justices won’t review a federal appeals court’s decision in May that police didn't need a warrant to seize and search cell phone records that revealed a Florida man’s location and movements.
The U.S. Court of Appeals for the 11th Circuit in Atlanta had ruled that there is no reasonable expectation of privacy for the location records. In the case, a federal prosecutor, as part of a 2011 investigation into armed robberies, got access to 67 days of Quartavius Davis’ cell phone records from the wireless service provider without a warrant.
The American Civil Liberties Union and other privacy groups call government access to those records a threat to personal privacy because the records nearly constantly track where a cell phone goes and when. Some lawmakers have sought to protect such data, calling the rules unclear about law enforcement officials' use to track suspects or review their movements and calls.
Two major congressional efforts are stalled in committees.
Sens. Ron Wyden, D-Ore., Mark S. Kirk, R-Ill., and Rep. Jason Chaffetz, R-Utah introduced companion bills (S 237, HR 491) to require a warrant to intercept or force service providers to disclose location data about Americans. The bill has been referred to Senate Judiciary.
Another House bill with that requirement (HR 656) was introduced by Zoe Lofgren, D-Calif., Ted Poe, R-Texas, and Suzan DelBene, D-Wash., and has eight more bipartisan co-sponsors. The lawmakers contend a 1986 law (PL 99-508) has failed to keep pace with rapidly evolving technology and no longer protects privacy. The bill has been referred to House Judiciary's Subcommittee on Crime, Terrorism, Homeland Security, and Investigations
The Supreme Court, in a unanimous 2012 decision finding that police attaching a GPS device to a suspect’s car is a search, wrote that Congress and state legislatures might be best suited to solve privacy concerns from technological changes.
“A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way,” Justice Samuel A. Alito Jr. wrote in the U.S. v. Jones decision. “To date, however, Congress and most states have not enacted statutes regulating the use of GPS tracking technology for law enforcement purposes.”
Cell phone location laws vary by state, and most law enforcement agencies do not obtain a warrant to track cell phones, according to the ACLU. The 11th Circuit covers Florida, Alabama and Georgia.
Davis was convicted and sentenced to 162 years in prison, according to his Supreme Court petition. His lawyers told the Supreme Court that the problem was of great importance, however, as AT&T received 64,073 requests for cell phone location information in 2014, while Verizon received approximately 21,800 requests for cell phone location data in just the first half of 2015.
Investigators in Davis’ case got call records for 5,803 calls and 11,606 location data points, an average of around one location data point every five and a half minutes for the 67 days, the petition from Davis states. That allowed them to put him in the area of robberies.