Fifth Circuit Considers Constitutionality of Cell Site Location Data

Department of Justice litigators just filed a reply brief in an exciting but complex case in the Fifth Circuit that concerns law enforcement access to cell site location data.  As amicus curiae, I hope to deepen readers’ understanding of the basic issues in the case and also to provide some insider’s insights.  This blog post will furnish the background that later postings will draw upon.

The litigation began when Magistrate Judge Smith rejected three government applications for cell site location data that did not purport to satisfy probable cause.  I highly recommend Judge Smith’s thoughtful opinion that holds that agents must obtain a warrant to compel service providers to disclose a target subscriber’s stored records of cell phone location data.  Justice Department lawyers appealed Judge Smith’s denial, as well as the District Court’s order that agreed with Judge Smith, because they claim the right to compel disclosure whenever they satisfy the “relevance standard” under 18 U.S.C. § 2703(d) (“D order”).

My amicus brief argues that the Fourth Amendment requires a probable cause warrant for all location data, which is similar to the argument in EPIC’s amicus briefEFF and ACLU made that argument as well, and they also suggested that the Fifth Circuit could find that the Stored Communications Act gives magistrate judges the discretion to require either a warrant or a D order.  EFF and ACLU previously advocated the discretionary approach in the Third Circuit, and the Third Circuit recently adopted it in the only federal appellate decision on the matter.   Orin Kerr’s amicus brief argued that magistrate judges lack the authority to deny government applications on the grounds of unconstitutionality.

The case’s importance derives from the lack of appellate guidance on law enforcement acquisition of cell site location data, which has become commonplace, according to the ACLU’s recent release of numerous public records.  The ACLU’s report reveals a wide array of procedures, with some practices clearly lacking appropriate protections against misuse.  Congress currently sits on bills that would clarify the standards; one would require a warrant for access to all location data; another would require a warrant only for prospective location data and not for stored data.

In future postings I will discuss how low procedural hurdles as well as a lack of notice and transparency make location data acquisition a threat to civil liberties.  I will also discuss the continued use of arbitrary distinctions (such as between historical and prospective data) that unduly complicates the law and limits privacy protections.  I will argue, for example, that the Supreme Court’s Jones case concerning GPS tracking in real-time governs historical location data.  With luck, I will even shed some light on just what location data is.  Please stay tuned.

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