On May 5, 2015, an en banc Eleventh Circuit held that a court order compelling the production of a third-party telephone company’s business records (specifically: phone calls and cell tower location) pursuant to the Stored Communications Act, id. § 2703(d), does not violate the Fourth Amendment and is not unconstitutional.
Courts in several states, such as Massachusetts and New Jersey ruled that phone records are constitutionally protected. Several States (including Maine, Minnesota, Montana, Tennessee, and Illinois) ruled that phone records can be accessed by police only with warrants and similar protection is being considered in several other States, such as Oregon and South Carolina.
However, the Eleventh Circuit decision seems to go in another direction: in a prosecution for bank robbery, the government acquired business records of a third party telephone company pursuant the Stored Communications Act (“SCA”), 18 U.S.C. § 2701 et seq. and based on magistrate judge’s order issued under the SCA, 18 U.S.C. § 2703(c)(1)(B),(d).
Before trial, Defendant moved to suppress the business records arguing that because the §2703(d) production of records constituted a “search” under the Fourth Amendment, it required probable cause and a search warrant. The district court denied the motion.
The jury returned a guilty verdict and Defendant appealed. A panel of the Eleventh Circuit affirmed the conviction, but held that the government violated Defendant’s rights under the Fourth Amendment by obtaining stored telephone communications records from a third-party telephone service provider without a warrant.
After reviewing the district court’s legal conclusions de novo and its findings of fact for clear error, the Court of Appeals in an en banc hearing concluded that court order for the production of the phone company’s business records did not violate the Fourth Amendment because Defendant could assert neither ownership nor possession of the third-party’s business records he sought to suppress. Those cell tower records were created by the telephone company, stored on its own premises, and subject to its control, and Defendant had no subjective or objective reasonable expectation of privacy in those records.
In deciding the Eleventh Circuit acknowledges the substantial “substantial governmental interests” that the disclosure serves: “The disclosure of such records pursuant to a court order authorized by Congress served substantial governmental interests; and, given the strong presumption of constitutionality applicable here, any residual doubts concerning the reasonableness of any arguable ‘search’ should be resolved in favor of the government”.