As the nature of our movements and communications become more electronic, the federal courts and courts in West Virginia are increasingly confronted with the complexities of balancing personal protections and privacy rights with governmental access to electronic data. While the right against unreasonable searches and seizures in the Fourth Amendment was once limited to physical searches of one’s home or car, it must now address government efforts to reach computers, cell phones, and the online “cloud.” One of the more perplexing questions that must be considered is whether these electronic spaces are indeed private, or whether conveying information by cell phone, or saving it online, is essentially a voluntary waiver of privacy. A recent case before the Fourth Circuit takes a look at the specific circumstances in which police use cell phone towers to retrieve information about defendants.
When we use our cell phones, whether for calling, texting, or GPS, they are in a constant state of communication with local cell towers, providing messages and feedback between the two. Cell phone companies typically maintain data regarding with which cell phone tower a particular cell phone interacts, and this data can be used to provide a rough sense of the location of a cell phone user at any time. While governments cannot actively monitor such data, they can request it directly from a cell phone provider. In United States v. Graham, this is precisely what the government did when investigating a series of armed robberies. Such evidence was subsequently used to help convict the defendants, and the defendants argued, on appeal, that the government obtained such data in violation of the Fourth Amendment because it did not have a search warrant.
In Graham, the government did comply with federal laws requiring it to show that the records were relevant to an ongoing investigation, but it did not show that it had the probable cause required by the Fourth Amendment. The defendants argued that this was insufficient. The Fourth Circuit held that the fundamental question at the heart of whether the government’s actions were constitutional was whether the defendants had a reasonable expectation of privacy as to such cell phone data. Here, the Fourth Circuit followed other circuits in applying the “third party” doctrine, which holds that when a defendant voluntarily discloses information to a third party, there is no reasonable expectation of privacy, and such information may be disclosed from the third party to the government. Every time the defendants made a call or sent a text, such information was routed through third-party towers, so they were voluntarily disclosing this information to these third parties, and the government thus had a right to obtain such data.
The Fourth Circuit acknowledged the defendants; concerns that such large amounts of information concerning their locations and movements could be so easily disclosed by third parties to the government. Were it considering the case from a “clean slate,” the court suggested that it might hold otherwise. But in light of the existing third-party doctrine, the Fourth Circuit explained that it was obliged to find that no constitutional violation occurred.
In today’s society, we increasingly rely on technology to ease the burden of our day-to-day lives. We entrust credit card numbers, bank account information, and GPS data to our computers, phones, and watches, often with little consideration for how much privacy these devices offer us. Since our federal and West Virginia criminal laws and privacy protections have been slow to catch up to these changing realities, it is important for criminal defendants to utilize all approaches at their disposal to assert their privacy rights and constitutional protections. The West Virginia criminal defense lawyers at the Wolfe Law Firm have been serving clients throughout the state for more than 25 years and continue to carefully follow the evolution of federal and state laws addressing privacy rights and technology. Call us at 1-877-637-5756 or contact us online for a free consultation.
Related blog posts: