A federal appeals court in New Orleans recently held that law enforcement officers do not need to obtain a warrant to gather records detailing a cell phone’s location. In justifying its ruling, a divided United States Court of Appeals for the 5th Circuit said that the information, which includes date, time, and location of a cell phone merely constitutes a business record that belongs to the telecommunications provider (e.g., Verizon).
When you use your cell phone, the device must connect to a cell tower to make a call. When a connection is made, the cell phone user’s location is recorded at the date and time of the call. This information is then stored by the service provider.
This ruling has large 4th Amendment ramifications for Americans who use cell phones (almost everyone in the U.S.). Now, law enforcement agents can easily obtain a court order pursuant to the Stored Communications Act. They will not have to hassle with getting a warrant under the higher probable cause standard. They will be able to obtain every bit of historical data from the date the cell phone was first put into use.
What bothers me the most about this case is that Justice Edith Brown Clement, who wrote the majority opinion, said that the court understood that cellphone users “may reasonably want their location information to remain private. But the recourse for these desires is in the market or the political process: in demanding that service providers do away with such records (or anonymize them) or in lobbying elected representatives to enact statutory protections.”
Well, our courts from the trial level to the highest appellate level are supposed to protect the Constitutional rights of our people. They are not supposed to give advice on how the people can obtain Constitutional protection by calling their phone company or elected representative.
On another note, a similar case will be argued soon before the United States Court of Appeals for the 4th Circuit. The central dispute in that case is again law enforcement’s ability to retrieve cell tower data from wireless telecommunications companies. I am sure that this 5th Circuit case will resurface.
This ruling, which could end up in the United States Supreme Court one day, raises serious 4th Amendment concerns with many in our community. The non-consensual, warrantless forcing of telecommunication providers to give law enforcement officers customer cell site location records is unconstitutional.
Just because technology is changing at a rapid case in the world does not mean that our Constitutional protections should be left behind. Our Founders anticipated changes in technology and culture when they drafted the Constitution. They would have expected modern judges to apply the original intent of our Constitution to current events without much problem. I hope that wisdom will eventually prevail and this decision will be reversed.