AT&T supports stricter standards for police cellphone tracking

AT&T has filed a federal court brief arguing that courts must account for people’s Fourth Amendment rights before authorizing law enforcement to get phone location histories from their cell service companies.

The ACLU characterized this as "a landmark move in the battle over privacy rights and new technologies."

The company’s filing is a friend-of-the-court brief in the appeal of a criminal case, U.S. v. Davis, in which the government obtained four people's cellphone location records over a 67-day period for a robbery investigation. The American Civil Liberties Union, which has also filed a brief supporting the defendant, praised AT&T’s entrance into the case.

“We have a right to expect that companies that hold great volumes of our sensitive data will protect our privacy,” said Christopher Soghoian, ACLU principal technologist. “AT&T is doing a real service to its customers by adding its voice to the chorus seeking more robust legal protections for cell phone location information, which can reveal deeply private details of our lives.”

In this case in June, a three-judge panel of the 11th Circuit Court of Appeals unanimously ruled that police need to get a warrant to get the location information, a first for a federal appeals court. The government has appealed that decision to the full 11th Circuit, and oral argument is scheduled for February 2015.

“Use of mobile devices, as well as other devices or location based services, has become integral to most individuals’ participation in the new digital economy: those devices are a nearly ever-present feature of their most basic social, political, economic, and personal relationships,” AT&T wrote in its brief. “Nothing in [past cases] requires that individuals must choose between participating in the new digital world through use of their mobile devices and retaining the Fourth Amendment’s protections.”

To get the information, the U.S. Attorney’s Office in Miami got what is known as a “D-order” from a federal magistrate judge, named for the applicable section of the federal Stored Communications Act. However, the standard for getting a D-order is that it be “relevant and material” to an investigation, which is lower than the probable cause standard required by the Fourth Amendment. Although getting D-orders for location information has been a common law enforcement practice, the appeals court rejected it.

For one suspect, Quartavious Davis, police got 11,606 location records — an average of one location point every 8 minutes. Davis was convicted based largely on the cellphone location evidence, and he appealed.

Despite the court’s June ruling that the government should have gotten a warrant, the court allowed the conviction to stand because law enforcement had relied in good faith on the decision of the magistrate judge to issue a D-order.

The full 11th Circuit may also consider this “good-faith exception” in the appeal.

A similar case, U.S. v. Graham, is currently awaiting decision in the Fourth Circuit.