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    One of the Biggest Privacy Wins in Recent Memory Has Been Reversed

    Written by

    Lorenzo Franceschi-Bicchierai

    Staff Writer

    Cops no longer need a warrant when seeking cellphone records from wireless carriers in the US a federal appeals court ruled on Tuesday—reversing its own decision from last year.

    The United States Court of Appeals for the Eleventh Circuit ruled that citizens have no expectation of privacy when it comes to records held by a third party, such as a cellphone company.

    The ruling is a significant setback for privacy rights in the digital age—one expert called it “devastatingly bad for privacy”— and runs contrary to trends in several states. In the last couple of years, Montana, Maine, and Minnesota, have all passed laws requiring local police to obtain warrants when requesting cellphone records, including historical location data pulled off of cell phone towers, from phone carriers like AT&T or Verizon.

    In this case, prosecutors obtained 11,606 location records from MetroPCS, the cellphone carrier of Quartavious Davis, a suspect in a series of armed robberies. The records showed Davis’ whereabouts based on the cellphone towers that his phone connected to over the span of 67 days.

    The ruling is a significant setback for privacy rights in the digital age—one expert called it “devastatingly bad for privacy.”

    “The government’s obtaining MetroPCS records, showing historical cell tower locations, did not involve a physical intrusion on private property or a search at all,” reads the decision. “The records belonged to a private company, not Davis.”

    That's why obtaining that data without a warrant is not in violation of the Fourth Amendment, the court ruled. The court's reasoning was based on two landmark US Supreme Court cases from the 1970s, United States v. Miller and Smith v. Maryland, which defined a much discussed legal theory known as the “third party doctrine.”

    The same Court of Appeals for the Eleventh Circuit, just last year, ruled the exact opposite in this case.

    “We hold that cell site location information is within the subscriber’s reasonable expectation of privacy,” the decision from last year read. “The obtaining of that data without a warrant is a Fourth Amendment violation."

    Digital rights activists called the court’s reversal a “disappointing” decision based on an old law which has been made outdated by rapidly-changing technology.

    “It's a shame the court felt confined by a case decided from the 1970s to decide the constitutionality of a very modern form of surveillance,” Hanni Fakhoury, a surveillance law expert and an attorney at the Electronic Frontier Foundation (EFF), told Motherboard.

    The ruling applied "outdated doctrine from the analog age to this very sensitive digital records.”

    Nate Wessler, an American Civil Liberties Union (ACLU) staff attorney who argued the case, said that what the court did was “apply outdated doctrine from the analog age to this very sensitive digital records.”

    For Wessler, the decision is far-reaching because the same interpretation could be used for other types of sensitive data held by third parties, such as email or cloud providers.

    “The implications of applying the third party doctrine to these digital records are really wide reaching,” he told Motherboard, “because we live so much of our lives online, in the cloud or using technologies that leave a trail of digital breadcrumbs behind us.”

    Judge Beverly Martin, who dissented with the majority ruling in this case seemed to agree with Wessler. She wrote that the ruling gives the government too much power to look into the digital lives of Americans without first obtaining a warrant.

    “Now, under the majority’s rule, the Fourth Amendment allows the government to know from YouTube.com what we watch, or Facebook.com what we post or whom we ‘friend,’ or Amazon.com what we buy, or Wikipedia.com what we research, or Match.com whom we date—all without a warrant,” she wrote.

    The Department of Justice did not immediately respond to a request for comment.

    Davis can now appeal his case to the Supreme Court. According to both Wessler and Fakhoury, it’s likely that the Supreme Court will soon hear a case on cellphone location privacy, which will give justices a chance to set the record straight.