Warrantless Cell Phone Tracking: The Fifth Circuit Weighs In

I wrote here about how law enforcement officers may obtain historical information about the location of a suspect’s cellular phone. There have been several developments in the law since then, including earlier this week when the Fifth Circuit rendered its decision in In re Application of the United States of America for Historical Cell Site Data. Summary of Prior Law. Law enforcement usually seeks historical cell site location information under the Stored Communications Act, 18 U.S.C. § 2701 et seq. The SCA generally prohibits providers of “electronic communications services,” such as cellular telecommunications companies, from disclosing subscribers’ records or other information absent appropriate legal authority. 18 U.S.C. § 2702(a)(3). What legal process is necessary? Under 18 U.S.C. § 2703(c)(1), law enforcement may obtain a “record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications)” by obtaining a search warrant or by obtaining a court order. Officers tend to prefer to seek a court order, because the standard for issuance is lower. To obtain a court order, the applicant need only present “specific and articulable facts showing that there are reasonable grounds to believe that the . . . records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). This showing is less than the probable cause required for a search warrant. Most courts have found no Fourth Amendment problem with this statutory scheme because the subscriber voluntarily conveys his or her location to [...]