Backed by groups concerned about government intrusion on privacy, a criminal defense attorney on Tuesday asked a federal appeals court to put the brakes on the warrantless acquisition of cellphone company records that can help identify a phone user's location.
Several of the 11 judges hearing the case seemed concerned about what a ruling for the government might mean as technology evolves and gives law enforcement more tools. But, backed by apparent allies on the U.S. Court of Appeals for the Eleventh Circuit, a Justice Department lawyer tried to steer the court from broader implications to the specific issue at hand.
All three arguments heard en banc Tuesday morning were lively, with justices interrupting one another, sometimes trying to answer questions posed by colleagues to the lawyers. The other two cases, also out of Florida, were a criminal matter in which the defense lawyer had been out of the courtroom for several moments of the trial, and a civil rights lawsuit over the raid of a barbershop.
But it was the argument over cell site location data that has drawn amicus briefs from groups such as the American Civil Liberties Union, the Electronic Frontier Foundation, the National Association of Criminal Defense Lawyers and the Reporters Committee for Freedom of the Press. They all backed the defense position that the warrantless gathering of such data is unconstitutional. Cell site location data generally will show which cellphone tower is closest to a customer when he or she makes or receives a call, as well as the direction of the user from the tower.***
Arguing for the defense on Tuesday, Miami lawyer David Markus began by reminding the judges that when the federal statute at issue was passed in 1986, cellphones cost about $3,000 each and were the size of a briefcase. There were only 1,000 cell towers in the United States, he noted.
In contrast, he said, "Everyone has a cellphone now." Markus invoked Chief Justice John Roberts' remark in a recent cellphone privacy decision that a visitor from Mars would think the devices were an appendage to the human body.
One thing hasn't changed, said Markus: "A warrant is required for the long-term monitoring of our citizens."
He added that case law doesn't say that everything held by third parties, such as online photos or data in a drop box, is fair game for government monitoring.
Judge Frank Hull urged Markus to focus on the facts of his case, eliciting his agreement that the content of communications wasn't at issue. But Markus managed to make the point later that although the cell site technology at the time it was used in Davis' case might identify a person's location within only about a mile, the technology now can place someone within a few meters.
Markus also argued that the government had probable cause to look at only seven days of cell site locations for Davis but obtained an order for 67 days of data. "They can get them," Markus said of the cell site data. "They just need a warrant."
Amit Agarwal of the U.S. attorney's office in Miami argued for the government. He noted that many types of records that reveal more about a person than cell site data, such as credit card statements, bank records, medical records and airline manifests, may be obtained by the government through a mere subpoena.
Hull responded that the prosecutor's point showed that the Stored Communications Act raised the bar for government action by requiring a court order for cell site data.
Judge Adalberto Jordan, who frequently presses lawyers to address hypotheticals, asked Agarwal whether the government's position would change as technology evolved. What if, the judge asked, the cell site data could pinpoint a person's location within 6 inches, or if the location information were available if a person merely had his phone turned on but didn't otherwise use it? Technology moves much faster than courts, Jordan added.
Agarwal maintained that in those instances the government likely still could obtain the information without a warrant supported by probable cause, if it otherwise complied with the procedural requirements of the federal statute. But he said the court could write an opinion addressing the issue posed by Davis' case while reserving judgment on the more difficult issues posed by Jordan.
"So you want to punt," Jordan responded, adding that Agarwal's response "brings in the whole specter of Big Brother."
"It is troubling, your honor," Agarwal responded, saying he wasn't asking the judges to permit continuous government tracking without judicial supervision.
Hull suggested she wasn't interested in hypotheticals: "It would be great to do other cases," she chimed in, "but this one is hard enough."
Martin was the lone member of the original panel who heard the case on Tuesday, as full court hearings do not include visiting judges, and a senior judge who sat at the panel has the discretion whether or not to participate. She indicated she was concerned about the implications of a ruling for the government, noting a government witness had testified about where Davis had slept.
She pressed Agarwal on a series of hypotheticals about government monitoring of email and website usage. "This case is a great example of how much you can know about somebody from metadata," said Martin.
While saying he didn't have all the answers, Agarwal said the government didn't quarrel with the notion that people have an expectation of privacy in their communications. But he said the cell site location data involved only the "routing" of communication, not the content.
During Markus' rebuttal time, Chief Judge Edward Carnes prompted the defense lawyer to make the case that the good faith exception employed by the panel should not apply, particularly in light of a Fifth Circuit ruling that the warrantless collection of cell site data was constitutional. Markus said rulings from the Third Circuit and some district court judges had put prosecutors on notice that they were proceeding at their peril that their efforts would be deemed unconstitutional.
After Markus returned to his main point on the constitutionality of the federal statute's application, Judge William H. Pryor suggested that perhaps Congress was best equipped to address issues of changing technology. Markus replied that it might take awhile for Congress to act, noting Congress hadn't done anything on the issue in 30 years.
"That's why we have courts to step in and put a check on the government," said Markus.
One thing that Tuesday's en banc session didn't provide was insight into the court's newest judges from Georgia, Julie Carnes and Jill Pryor. Although Robin Rosenbaum, a Florida judge confirmed to the court earlier this year, was active in defending the pro-plaintiff opinion she authored for a 2-1 panel in the barbershop case, the two new judges from Georgia were silent.