The Fourth Circuit held that the government is not required to obtain a warrant for cell tower data in United States v. Graham (4th Cir., No. 12-4659, en banc 5/31/16). The Court found that cell tower data was voluntarily turned over to a third party by the cell phone user. This information was created and maintained by the cell phone companies in the normal course of their business. The information can be used by the government to establish that a defendant was in the vicinity of a certain area when a crime occurred.

The Fourth Circuit joins the Third, Fifth, Sixth, and Eleventh Circuits, who have already decided this issue. The government is required to apply to the federal court for an order directing the cell phone company to disclose the records. The Stored Communications Act provides a lesser standard than that required for a warrant. The government need only demonstrate “specific and articulable facts showing that there are reasonable grounds to believe that . . . the records . . . are relevant and material to an ongoing criminal investigation.”

Two dissenting judges argued that cell phone users do not voluntarily turn information over to the cell phone companies merely because they bought a mobile phone, turned it on and put it in their pocket. Unlike other voluntarily conveyance cases, the dissenters found that cell phone users do not necessarily know that they are communicating this particular information, and they did not act in some way to submit this information to the cell phone companies.