Release of cell phone location tracking data raises First Amendment concerns, Reporters Committee argues

The Reporters Committee for Freedom of the Press today filed a brief in an important case assessing the constitutionality of warrantless acquisition of historical cell phone location data.

In United States v. Quartavious Davis, a panel of Eleventh Circuit judges held that the Fourth Amendment applies to requests for historical cell site location information. Prosecutors had obtained over two months' worth of historical location information from Davis's cell phone provider using a court order issued under the Stored Communications Act, which permits a court to compel a service provider to turn over subscriber records, but does not require the court to find probable cause. The Eleventh Circuit granted rehearing en banc, and the Reporters Committee filed a brief in support of the defendant's position.

The Fourth Amendment question in the case, the Reporters Committee argued, is inextricably linked to First Amendment questions. Warrantless acquisition of cell phone location data is concerning because a record of where one goes, and for how long, lays bare the processes of investigative reporting and threatens to reveal confidential sources and methods. The data acquired in Davis's case was precise enough that the prosecutor relied on it in summation to place Davis at the scenes of the robberies he is accused of committing.

Historically, the Fourth Amendment was designed to protect journalists, many of whom were the targets of "general warrants" for seditious libel. As a result, the Fourth Amendment requires all searches to be "reasonable" and limits the issuance of warrants to cases in which there is probable cause. Abundant case law supports the premise that where First Amendment interests are at stake, the Fourth Amendment must be applied scrupulously. But when location information is acquired without a warrant, how judges weigh First Amendment interests is unclear at best.

The Eleventh Circuit recognizes a qualified First Amendment privilege that protects a reporter's refusal to reveal the identity of a confidential source. But acquiring long-term location information without a warrant undermines this privilege "by permitting law enforcement to ascertain the locations of calls and meetings and the identity of any confidential sources whom the journalist has contacted without satisfying the required safeguards." In addition, warrantless location tracking threatens to chill reporter-source relationships and impede news gathering. Numerous reporters and representatives of media organizations have noted that awareness of the government's use of subpoenas and metadata collection have substantially intimidated sources from speaking to the press.

The Reporters Committee urged the Eleventh Circuit to take account of the First Amendment implications of long-term location tracking when deciding on the constitutionality of this search. Oral argument will take place on February 24, 2015, in Atlanta, Georgia.