The Supreme Court may soon decide whether the Constitution protects cell tower data from police seizure without a warrant, affording the justices the chance to revisit one of the most controversial tenets of Fourth Amendment law.
Cell site data has become integral to criminal prosecutions because it allows law enforcement to seize location data from a suspect’s cellphone without a warrant. This information allows police to pinpoint a criminal suspect’s location at a given moment in time (cell site data does not allow for real-time tracking, however.) A 2016 AT&T report shows the company received over 50,000 requests for historical cell site data from police agencies.
A legal theory known as the third party doctrine the Supreme Court first announced in Smith v. Maryland in 1979 allows police to obtain records shared or maintained by third parties without a warrant. According to the doctrine’s reasoning, individuals relinquish their expectation of privacy when they agree to share certain records with a third party, like a phone company, bank, or internet service provider. Since telecommunications firms maintain cell site data, prosecutors argue that individuals should not expect the Fourth Amendment, which prohibits unwarranted searches and seizures, to protect this information.
The federal courts have largely vindicated that view. One panel of the 4th U.S. Circuit Court of Appeals ruled that government seizure of cell-site data without a warrant is unconstitutional, though that ruling was later overturned on review. The 3rd, 6th, and 7th U.S. Circuit Courts of Appeals have also ruled in favor of the government in similar controversies. The high degree of consensus among circuit courts makes the high court somewhat less likely to take up the cell site data question.
Some of the justices may be interested in revisiting the third party doctrine, which in the modern era has effectively resulted in a huge grant of unsupervised search and seizure power to police. As Damon Root notes at Reason, Justice Sonia Sotomayor expressed misgivings about the principle in a 2012 concurrence in which she argued individuals surrender information to third parties for limited and specific purposes. These purposes should not amount to a wholesale abdication of all privacy expectations, she maintained.
Some scholars have suggested the justices would be better served by allowing the controversy to further develop in the lower courts. Writing at the Volokh Conspiracy, professor Orin Kerr of George Washington University Law School said a split on the issue in the lower courts would help the justices resolve the complicated questions that will inevitably result from their ruling. He writes:
A clear split would be helpful in this kind of case because once you say that historical cell-site data can be protected, you then get to the really hard issue of when it is protected. Is it always protected? Is it protected only in some aggregate fashion under a mosaic theory? Does the resolution of the location data in the records make a difference? Is there a warrant requirement? What is the particularity of a cell-site warrant? There are no obvious answers to those questions.
The justices will consider the cell site petitions during a conference on May 11.
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