On Tuesday, the Eleventh Circuit ruled, en banc, that law enforcement may obtain historical cell site location information without a search warrant, using a court order based on less than probable cause. There’s a controversy over what legal standard should govern law enforcement access to location information, and the Eleventh Circuit’s ruling is likely to be influential in the debate. This post explains the issue and puts the new decision in context. The traditional analysis. The traditional view of cell site location information has been (1) that the subscriber has no privacy interest in it, because it is voluntarily shared with the service provider in the course of using cell phone service; (2) that law enforcement access to such information is therefore regulated principally by the Stored Communications Act, 18 U.S.C. 2701 et seq., rather than the Fourth Amendment; and (3) that because location data are non-content records, they are available under the SCA through a court order based on a showing of specific and articulable facts providing reasonable grounds to believe that the data are relevant and material to a criminal investigation. See 18 U.S.C. § 2703(c)-(d). The argument for Fourth Amendment protection. Defendants have sometimes argued that location information is inherently private in a way that other business records are not, and so should be protected by the Fourth Amendment. This view gained some momentum after the Supreme Court’s ruling in United States v. Jones, 565 U.S. __, 132 S. Ct. 945 (2012), regarding GPS tracking. Although the holding [...]
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