Justices weigh cellphone data privacy rights in 4th Amendment case

December 8, 2016

When people turn on their cellphones, they have a general understanding that some data regarding their whereabouts will be collected. But if a person does not know the extent to which that data is collected, then can the court say that such data was voluntarily released by the person, or is there an expected right to privacy?

The justices of the Indiana Supreme Court grappled with such questions Thursday morning when they heard arguments in the case of Marcus Zanders v. State of Indiana, 15S01-1611-CR-00571. In early 2015, Marcus Zanders was convicted of two counts each of Level 3 felony robbery with a deadly weapon and Level 4 felony possession of a firearm by a serious violent felon. The jury found him guilty based on evidence that included cellphone data that pinpointed his location around the time of the robberies — data that was obtained by police without a warrant.

A divided panel of the Indiana Court of Appeals revered Zanders’ convictions in August, with Judge Patricia Riley writing for the majority that “Zanders had a reasonable expectation of privacy in the cell-site location data stored by Provider … and his expectation was one that society considers reasonable and legitimate.”

Leanna Weissmann, counsel for Zanders, made a similar argument before the justices Thursday morning, telling them that under both the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution, Zanders and other Hoosiers have rights protecting them from police searches and seizures without warrants.

Specifically, under the Indiana Constitution, Weissmann argued that the police action of requesting Zanders’ cellphone data as an emergency and without a warrant was not reasonable police behavior.  Weissmann said the police requested overly broad data that covered 30 days, while the crimes were only committed within the time of a week.

Further, she argued that because the police had requested both historical location and GPS data, they were asking for real-time tracking data and information related to times when Zanders was within his own home, both of which expressly require a police warrant to obtain.

But Stephen Creason, counsel for the state, made the opposite argument, telling the justices that the police officers had not asked for any information about Zanders that he had not voluntarily given to the cellphone company to keep for their own records. And if a warrant is required to access those records, then cellphone companies will be deprived of the right to use its own data, he argued.

The question of whether Zanders voluntarily gave up his location data to the cellphone company became the central theme of the oral arguments.

Justice Mark Massa asked Weissmann how Zanders’ actions were not voluntary if there was no government coercion for him to give up his location data. But Weissmann said Zanders did not know the extent to which the cellphone company was collecting data, so his actions could not have been voluntary if he did not know what he was giving up.

Conversely, Justice Robert Rucker asked Creason how the simple act of turning on a cellphone that tracks location data constitutes the voluntary release of that data. Creason told the justice that people buy cellphones for the convenience they offer and understand that in order to use a cellphone, the device has to know that you are within its signal reach. Thus, under the third party doctrine, people voluntarily give up a small right to privacy in exchange for the ability to be in constant communication wherever they are, he said.  

Rucker then pushed Creason on the Fourth Amendment issue, asking him why the police could not have waited the short amount of time it takes to obtain a warrant. Although Creason acknowledged that obtaining a warrant in the Zanders case would not necessarily have been an issue, the action was not constitutionally required because Zanders had voluntarily given his location information to the cellphone company.

“The Constitution doesn’t regulate every area of our human existence and our contact with other people, it doesn’t regulate every area of police-citizen contact,” Creason said. “And here, of course, the police aren’t even contacting the citizen.”

But Weissmann compared the data to “digital trash,” or debris left behind by a cellphone, often unknown to the cellphone’s owner. Indiana protects trash from unwarranted search and seizure, Weissmann said, so “digital trash” should be no different.


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