Currently, there is a disagreement among courts as to whether section 2703(d) of the Stored Communications Act, which governs the disclosure and use of historical cellular location information, violates the Fourth Amendment. Increasingly, the federal government is using cellular phone companies’ historical cellular location information—data communicated by a cellular phone to a cellular network, which identifies the location of a phone at a particular time—to investigate and prosecute crimes. This information can provide an accurate, historical record of a person’s general whereabouts during the time period for which the data applies. Though the Fifth Circuit has held that section 2703(d) court orders are constitutional, several courts have found that the provision’s “specific and articulable facts” requirement violates the Fourth Amendment. These courts prescribe that law enforcement secure a search warrant with the requisite showing of probable cause prior to obtaining the data. This Note examines the controversy surrounding historical cellular location information and the Fourth Amendment. It begins by exploring the technology and law enforcement’s interest in the information. This Note then surveys pertinent Supreme Court precedent and analyzes the major approaches taken by courts in addressing the use of this data. In particular, there are three approaches taken by courts: (1) use of the third-party doctrine, (2) treatment of the issue as a tracking case, and (3) use of the “mosaic theory” articulated in United States v. Maynard. This Note contends that while the Fourth Amendment is likely not implicated by historical cellular location information, legislatures and law enforcement alike must take steps to strike the appropriate balance between privacy and security. It proposes that Congress amend the Stored Communications Act to include a statutory suppression remedy. This will provide a way to exclude evidence collected pursuant to faulty, conclusory, or false court orders. Additionally, this Note suggests that federal and state legislatures remedy excesses in the acquisition of historical cellular location information. Moreover, it recommends that law enforcement impose its own standards and require warrants prior to accessing the information sought. While a constitutional bar to this evidence may not exist, our rapidly changing notion of a “reasonable expectation of privacy” demands proactive and introspective action by legislatures and law enforcement.
The full text of this Note is available to download as a PDF.