Fifth Circuit Upholds Warrantless Cellphone Location Tracking

First time accepted submitter mendax writes "The New York Times is reporting, 'In a significant victory for law enforcement, a federal appeals court on Tuesday said that government authorities could extract historical location data directly from telecommunications carriers without a search warrant. The closely watched case, in the United States Court of Appeals for the Fifth Circuit, is the first ruling (PDF) that squarely addresses the constitutionality of warrantless searches of historical location data stored by cellphone service providers. Ruling 2 to 1, the court said a warrantless search was 'not per se unconstitutional' because location data was 'clearly a business record' and therefore not protected by the Fourth Amendment.'' The article pointed out that this went squarely against a New Jersey Supreme Court opinion rendered earlier this month but noted that the state court's ruling was based upon the text of the state's constitution, not that of the federal constitution."

Unlikely to impress SCOTUS

[bill_mcgonigle]

The Court was unanimous in /US v. Jones [politico.com]/ - it's hard to see how they'd backpedal because their concern was over the surveillance nature of modern technology, not merely the source of said data. By their logic in /Jones/, this case's data gathering would also be a search.

I'd feign shock that the 5th Circuit couldn't understand the /Jones/ decision, but it's so much more realistic to believe that those judges just wanted to give government power another bite at the /Jones/ apple.

What is the carriers' position?

[timeOday]

Even if the carriers can legally share their "their" data (about you) without a warrant, nothing says they have to, unless there is a warrant. It seems a provider would have nothing to lose, and could gain, by promising confidentiality unless there is a warrant. Do any of them have any meaningful sort of privacy policy about this?

Re:LOL Corporations!

[pixelpusher220]

While the ruling is troubling on a number of levels the concept itself is fine.

A 'business record' whether held by an individual or a corporation (person or otherwise) is a '3rd party' record and as such isn't protected by YOUR 4th Amendment rights. It would be no different if you paid your neighbor to record your movements and they asked them for your data.

That said, the troubling aspects are we've made the jump from business records (how the business runs its operations) to user generated records housed and recorded by the business. The law makes no distinction, but the latter has massive privacy implications.

I suppose if there were truly a free market (I hate that word btw) we'd have entries into the mobile wireless business doing what VPNs have for a while. I.e. no logging 'at all'.

If the gov't in any way compels a business to keep records (and there lots of valid reasons for this) then those records are not considered 'business records' and need applicable warrants, etc.

Re:LOL Corporations!

[camperdave]

By extension, the records of a Private Investigator following someone are clearly a business record as well. So the cops can just hire PIs to follow suspects around, record their conversations, etc. without search warrants. Sigh! Why bother with a constitution at all?