When a cellphone is turned on, most users have a general understanding that location data from the phone is being collected from cell towers and sent back to the data providers.
But is the act of turning on a cellphone a voluntary agreement to share that data, or do consumers have a right to privacy of the location information collected from their personal devices? The justices of the Indiana Supreme Court heard legal arguments on both sides of that issue during oral arguments in the case of Marcus Zanders v. State of Indiana, 15S01-1611-CR-00571, on Dec. 8.
In early 2015, Marcus Zanders was arrested in connection with a string of robberies and convicted on two counts each of Level 3 felony robbery with a deadly weapon and Level 4 unlawful possession of a firearm by a serious violent felon. In a case otherwise based on circumstantial evidence, the state staked their case on cellphone data that pinpointed Zanders’ location around the time of the robberies — data that police obtained without a warrant.
A divided panel of the Indiana Court of Appeals reversed 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, telling them that under both federal and state constitutions, Zanders and other Hoosiers have rights protecting them from police searches and seizures without warrants.
Weissmann specifically based her arguments on Article 1, Section 11 of the Indiana Constitution, though there was some confusion among the justices as to whether Zanders had previously waived his right to such an argument.
In the context of the Indiana Constitution, Weissmann argued that police action in Zanders’ case was not reasonable. When officers asked Sprint for the location data — without a warrant, but telling them that the situation was an emergency — they asked for 30 days’ worth of data, an amount Weissmann said was excessive because the robberies occurred over the course of a week. Additionally, police asked for both historical location and GPS data, which meant they were given access to real-time tracking information and location data within Zanders’ own home, both of which require a warrant to obtain.
From a Fourth Amendment perspective, Dan Coffey, an Indianapolis attorney whose practice focuses partly on Fourth Amendment and search and seizure cases, said the Zanders case looks largely at the question of when timing can allow for exceptions to the warrant requirement. Coffey is not working on the Zanders case, but said he was glad the high court agreed to hear it as the decision could provide some much-needed guidance on the issue.
In the appellate court opinion overturning Zanders’ conviction, Riley wrote that because cellphone location data is not time-sensitive, there was no reason police officers could not have gone through the brief process of obtaining a warrant before requesting the data from Sprint. In that line of thinking, Coffey said courts have been clear that if data is not going anywhere, then absent exigent circumstances, there is no good reason not to obtain a warrant.
Justice Robert Rucker raised a similar issue with Stephen Creason, a deputy attorney general who argued on behalf of the state. Rucker asked why the police couldn’t go through the process of obtaining a warrant, especially since technological advancements in recent years have made that process faster and more convenient.
Creason said such an action was not constitutionally required because Zanders had voluntarily given away his location data when he used his cellphone.
But Brian McGinnis, a partner at Barnes & Thornburg LLP and member of the firm’s data security and privacy group, called the issue of whether police are required to get warrants for cellphone data a slippery slope. In situations in which data was relevant to cases involving terrorism or national security, then a warrant could perhaps be forgone, McGinnis said. But at the same time, such exceptions could be abused, he said.
The real heart of the issue goes to whether people are aware of just how much data about them is being collected, McGinnis said. From his perspective, most people do not have an accurate understanding of how much data about their personal lives, such as their movements throughout the day, is stored and collected. Without that knowledge, people cannot accurately make informed decisions about how much information about their lives they want to give away, he said.
Weissmann made a similar argument before the state Supreme Court, telling the justices that Zanders could not have voluntarily given his location data to the police because he was unaware to what extent that data was being tracked.
Justice Mark Massa challenged Weissmann on that point, asking her how he could have involuntarily given up the data if there was no government coercion. But Weissmann said that if citizens don’t know what the data is or how much of it is taken, then they cannot voluntarily give their data away.
But Creason told the justices that the police had not requested any information about Zanders that he had not voluntarily given to the cellphone company to keep for their own records.
People generally purchase cellphones — and in particular, smartphones — for the conveniences they offer, Creason said, and most people understand that in order for a cellphone to work, the device must know that it is located within a service range. Thus, under the third-party doctrine, Creason told the court that Zanders and other smartphone users voluntarily give up a small right to privacy every time they use their phone in exchange for the convenience of being constantly connected.
McGinnis agreed that privacy comes at a cost, but also argued that the public has to be informed of that cost — such as knowing how much data about them is being collected — in order to determine if the cost is worth paying.
In his dissent from the Court of Appeals’ decision in this matter, Judge James Kirsch referenced the U.S. Supreme Court case of Smith v. Maryland, 442 U.S. 735 (1979), which held that an individual has no right to Fourth Amendment protection “in information he voluntarily turns over to (a) third party,” closely mirroring Creason’s position in oral arguments.
Coffey said that case and its emphasis on the third-party doctrine would likely be the dividing line justices will find themselves walking as they try to balance privacy rights with legal precedents that have evolved with technology.•