5th Circuit to decide whether police can get cell phone tracking records without warrant

TechHive on Saturday published an effective preview of an important case before the 5th Circuit Court of Appeals to determine whether law enforcement can obtain cell phone tracking data from service providers without a warrant:

The U.S. government will be taking a second crack Tuesday at overturning a lower court ruling that's preventing police from obtaining cell phone location records from two wireless carriers without a search warrant.

Now before the U.S. Court of Appeals in New Orleans, the government's attempt to obtain 60 days of records from the carriers as part of a "routine" law enforcement investigation was previously rebuffed by a magistrate judge in a federal district court in Texas.

The Texas judge ruled that a warrant was necessary to obtain the information because the data was protected by the Fourth Amendment to the U.S. Constitution, which protects an individual's privacy.

In papers filed with the appeals court, the government is arguing that the Fourth Amendment doesn't apply to location records archived by carriers because they are business records.

The courts have ruled that business records are subject to something called "the third-party doctrine." That doctrine excludes from Fourth Amendment protections records that an individual has neither ownership nor possession of.

In addition, the government is arguing consumers should not have a "reasonable expectation" that their carriers will keep records containing location information private. "Reasonable expectation" is one of the measures established by the courts to determine if Fourth Amendment rights can be asserted by a person.

Orin Kerr at the Volokh Conspiracy has been arguing vociferously, and at length, that the magistrate judge whose ruling is being appealed had no authority to prevent law enforcement from acquiring such data, insisting that he could not do so until law enforcement actually abused the information. Scott Greenfield posted an effective rebuttal to Kerr's argument, and Orin posted links to several amici briefs, including three which argue in favor of affirming the magistrate's order.

IMO, if the courts don't forbid police from accessing this data without a warrant, Congress and/or state legislatures should do so.