In a 2-1 ruling, the US Circuit Court of Appeals for the Sixth Circuit has ruled (PDF) that law enforcement has the right to obtain location data from a cellphone in order to track a suspect without a warrant. The case involves a man named Melvin Skinner, a newly convicted drug trafficker, who was part of a cross-country, large-scale drug operation organized by another man, James Michael West.

Skinner had appealed his many convictions: conspiracy to distribute and possession with intent to distribute over 1,000 kilograms of marijuana, conspiracy to commit money laundering, aiding and abetting the attempt to distribute in excess of 100 kilograms of marijuana. His attorneys argued that the government’s use of his GPS location information from his phone, which led to his arrest, constituted a warrantless search in violation of the Fourth Amendment.

"There is no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cell phone," wrote Judge John Rogers, in the majority opinion. "If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal."

The Stored Communications Act strikes again

In January 2006, Christopher S. Shearer, another participant in the West marijuana operation, was stopped with $362,000 in cash. Shearer was on his way to deliver money on behalf of West to his marijuana supplier, Philip Apodaca, in Tucson, Arizona. Under questioning, DEA agents learned from Shearer how the West group conducted the drug trafficking operation. The agents found out that Apodaca would purchase prepaid cellphones under fictitious names and used pre-programmed contact information to orchestrate drug trafficking. Those phones were then discarded after a period of time.

However, by May and June 2006, law enforcement agents received authorization to intercept the communications of two phones established in West’s name. In an order written by a Tennessee federal magistrate judge, the prosecuting United States attorney received authorization to install a pen register, a trap and trace device, and to receive location data from the call’s origination and termination points, in addition to GPS and ping data from those phones.

Among other rationales, the judge cited the Stored Communications Act (also known as a 2703(d) order) as grounds to provide this order. Under that federal statute, authorities can’t receive the contents of electronic communication (what was said), but can find out where and to whom it was said. In contemporary cases within the last decade, law enforcement and judges have increasingly used this reasoning to obtain extensive location data that can effectively turn the phone into a tracking device. Such information previously would have required a much higher legal threshold—a probable cause-driven warrant.

Thanks to the intercepted calls between Shearer and West, law enforcement learned of the existence of a truck driver courier, known by the codename "Big Foot," who turned out to be Melvin Skinner. Based on the location data acquired from both phones, law enforcement agents were able to learn of Skinner’s location en route during his drug delivery from Arizona to Tennessee. Not surprisingly, he was promptly arrested at a rest stop near Abilene, Texas while driving a "motorhome filled with over 1,100 pounds of marijuana."

Different than Jones

In the court’s majority opinion, Judge Rogers specifically referred to the United States v. Jones case, which was decided by the United States Supreme Court in January 2012. In that unanimous decision, the Supreme Court found that law enforcement does not have the authority to warrantlessly place a GPS tracking device on a suspect’s vehicle.

However, in this case, the Sixth Circuit Court of Appeals found that "no such physical intrusion occurred."

"Here, the monitoring of the location of the contraband-carrying vehicle as it crossed the country is no more of a comprehensively invasive search than if instead the car was identified in Arizona and then tracked visually and the search handed off from one local authority to another as the vehicles progressed," Judge Rogers added in the decision.

"That the officers were able to use less expensive and more efficient means to track the vehicles is only to their credit."

In the wake of the Skinner decision, some privacy law experts disputed the court’s reasoning.

"In fact, the government's use of a pen register and a trap trace device (called a 'hybrid order') to obtain the info is something that has been extensively litigated and disputed," wrote Hanni Fakhoury, a staff attorney with the Electronic Frontier Foundation, in an e-mail sent to Ars.

"This ‘hybrid' theory has been challenged both as a matter of statutory interpretation (i.e., the government's statutory analysis is wrong; you can't use the statutes in that way) and as a matter of constitutional law (i.e., even if you could use a d-order to get this info, 2703(d) is unconstitutional because this information requires a search warrant). The fact the Sixth Circuit didn't mention that or go through any of the legal analysis or even note that this is a hotly contested legal issue is simply (to borrow a term I saw on Twitter) ‘lazy.'"