Like many people, Aaron Graham and Eric Jordan carried cell phones around in 2011. Unlike most people, Graham and Jordan were convicted of crimes arising from their participation in a series of armed robberies[1] in that period, and were soon sorry that they had their cell phones on them when those robberies happened. Sitting en banc, the U.S. Court of Appeals for the Fourth Circuit just made them sorry last Tuesday in United States v. Graham, No. 12-4659 (4th Cir. May 31, 2016).
Because in their investigation, federal agents sought the cell-site location information (or “CSLI” as the kids say these days) for Jordan and Graham to establish their presence in the general vicinity of the robberies. That is, cell phones rely on proximity to their providers’ cell towers to get signals, and the providers (Verizon, Sprint, etc.) generally keep records of which phones are linking up to which towers at any given moment. Those records are the CSLI, and those are what the agents wanted to get to build their case.
And the Stored Communications Act says the agents were allowed to get that information, even without a warrant. Specifically, the Act says that to get access to these records, the government needed to demonstrate either (1) probable cause for a warrant, or (2) specific and articulable facts showing reasonable grounds to believe that the records are relevant and material to an ongoing criminal investigation for a court order. 18 U.S.C. § 2703(c), (d). Here, the agents followed the second route and got a court order but not a search warrant. The Defendants didn’t claim the government violated the statute, but did argue that the statute violated the...
