Texas' Fourth Court of Appeals in San San Antonio recently ruled that police are not required to obtain a warrant to acquire cell-site location data from a service provider because of the Third Party doctrine.
As the prosecutors' association's weekly case summary put it, the question in Ford v. State was "Did the State violate the Fourth Amendment by acquiring from the phone
company, without a warrant, the defendant’s cell phone records that
revealed information (tower-pings, outgoing and incoming communication,
etc.) connecting him to a murder?"
The court's holding, again from TDCAA: "No. Fourth Amendment protections are surrendered when a person exposes
activities to a third party. That exposure makes the records merely
business records of the phone company and not protected communications." See pp. 16-28 of the opinion for the court's reading of current Texas law on cell-phone location data.
This is important because law enforcement interests have been telling legislative staff at the state capitol that last year's changes in Texas law to Art. 18.21 of the Code of Criminal Procedure regarding cloud-based email and other content already require Texas cops to get warrants for location data. My response has been 1) it's not true, for reasons evident in the Ford opinion, and 2) if it is true, there's no harm in updating CCP 18.21 to get rid of the outdated language and make the warrant requirement explicit.
MORE: I should have mentioned, they're not the first Texas court to rule this way.
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9 comments:
No warrant required for location data? Is content admissible in court without a warrant? Would the defendant even know or be able to challenge the warrant?
Is this one of the main reasons we tossed the Brits out and wrote the Constitution?
If the Constitution does not apply, lets just scrap it, nobody seems to care.
Have not read the case yet, but here's my recollection.
Cell phone location data is not content. It can be acquired without a search warrant using a business record affidavit. It is akin to information pen packs (lists of the numbers called from a land line), which historically have not required a search warrant, only a business record affidavit. Web-based e-mail is content and would require a SW.
Skifool, until last session cloud-based email and other content held by a third-party provider required no warrant after it was six months old, as per Texas law incorporating the federal Electronic Communications Privacy Act by reference. The statute, written in 1986, assumed email older than six months was abandoned, believe it or not. The Stickland/Dutton Amendment closed that loophole for Texas law enforcement. The bill to do the same for the feds is stalled in Congress (see here).
RE: location data, federal circuits and state high courts are split, while several states have extended the warrant requirement to phone location data by statute. Texas came close last year to passing such a bill (Bryan Hughes' HB 1608). Next year I'm modestly confident we'll get it, but time will tell.
The important thing here is the 4th Court of Appeals case contradicts what the cops are telling legislative staff at the capitol. Shocking, huh?
Yep.
Thanks for the information.
I blame Facebook. There are so many videos of little puppies and people pouring ice water over their heads a man just has to prioritize. As long it is the rights of someone else that are being violated...
Somehow this seems so wrong, and so easy to be abused.
Well, then. Shouldn't we be able to access law enforcement cell phone data without a warrant, too?
I have a question though, and should clear some things up. Even though it doesn't somehow by the courts claim, violate your 4th amendment, don't the cops still have to follow the statute and get a warrant?
@ Simran: No. The statute as written doesn't require one, or at least so say the courts.
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