Fifth Circuit: Legislative bodies, not courts should decide if warrant needed for cell-phone location data

Well, now Texas really needs to pass legislation requiring warrants for cell-phone location data. While Grits was on vacation, a 5th Circuit panel issued a 2-1 decision which Orin Kerr called a "thorough and comprehensive endorsement of DOJ’s position" that no warrant should ever be required for the government to access historical cell-phone location data. See the opinion (pdf), which creates a split among the circuits on the issue. The Third Circuit in 2010 sided with a magistrate judge in requiring a warrant.

The court's analysis hinged on the notion that consumers disclosure of location data to their cell-phone company is voluntary. A wag in the New York Times comments section summed up the absurdity of that stance, retorting, "Yeah, so is the use of windows. That doesn't mean there are no legal protections against peeping Toms."

IANAL but I thought the dissenting opinion by Judge James L. Dennis was particularly effective in its assertion of magistrate judges' authority to require warrants under the federal Electronic Communications Privacy Act (ECPA). The Obama Administration argued, and the two panel members in the majority agreed, that federal magistrates must approve the government's collection of historical location records whenever the state meets a "reasonable suspicion" standard. But Judge Dennis made a strong statutory case that, even under the profoundly flawed ECPA statute, magistrate judges have discretion to require a warrant.

I generally agree with the majority that legislative solutions would be preferable to courts making such rules, which is why your correspondent spent much of the last year trying to convince the Texas Legislature to require a warrant for state-level law enforcement to access cell-phone data. (Grits harbors few hopes that the dysfunctional US Congress could address the question in its current form.) But Judge Dennis' opinion shows how the majority's ruling hamstrings federal magistrate judges from exercising the discretion they ought to have under the current statute. Notably, Texas law incorporates the ECPA statute by reference, allowing state and local law enforcement to access this data under the same standard as the feds. So this ruling in theory has implication for state-level cases in Texas, too.

Grits had hoped that Texas would have passed legislation this session to require warrants for cell-phone location data in state courts. The Texas House of Representatives overwhelmingly approved the idea as an amendment to a senate bill (indeed, 107 members signed on as joint or co-authors of related legislation) but the measure did not become law thanks to procedural maneuvers by the bill authors, who deferred to law enforcement's vociferous, at times unseemly opposition to the idea. Since then, three state legislatures (Montana, Maine and Missouri) and the New Jersey Supreme Court have introduced warrant requirements.

The circuit split means eventually the US Supreme Court will likely weigh in. The narrow 5-4 decision in US v. Jones (pdf) makes one modestly sanguine that the majority will sustain a warrant requirement. However, the court punted on requiring a warrant in Jones, holding only that gathering location data by placing a GPS tracker on one's car is a search. Counting heads in the concurrences, five justices would have held that continuous, ongoing location tracking should require a warrant, but only Justice Sonia Sotomayor dared suggest that technological changes have mooted the "third-party doctrine," which is a Fourth Amendment exception manufactured by the high court in the 1970s. Really, the issue is a crapshoot for both sides given the present make-up of the court. No one could possibly predict with confidence how they might rule, a fact which argues even more strongly for a legislative solution.