Defendant Aaron Graham was suspected in a series of armed robberies around Baltimore. Without a warrant, police obtained 221 days of historical cell site location information about Graham from Sprint, which detailed 29,000 location points, an average of 100 data points a day. The trial court denied Graham's motion to suppress and he was convicted after a jury trial. On appeal before the Fourth Circuit Court of Appeals, EFF joined the ACLU, the Center for Democracy and Technology and the National Association of Criminal Defense Lawyers in an amicus brief, arguing police need a search warrant to obtain historical cell site records from a cell phone provider.
In August 2015, the Fourth Circuit agreed in a 2-1 opinion, ruling there was an expectation of privacy in historical cell site records and requiring police use a search warrant to obtain this information. However, after the government petitioned the Fourth Circuit to review the case en banc (with the full court), the full court overturned the panel decision in late May 2016. The court held that because we share our location information with cell service providers, we lack a Fourth Amendment-protected privacy interest in this very sensitive data. This decision, which follows decisions from four other federal appellate courts, means that now, in the vast majority of states, federal law enforcement agents don’t need to get a warrant to get access to this data from a cell service provider. The defendants in Graham and Carpenter (a similar case from the Sixth Circuit Court of Appeals) petitioned the Supreme Court for certiorari (review) in fall 2016. We filed an amicus brief in support of cert.