Section 21.46 Evolving Subjects

2. (§21.46) Evolving Subjects

A subject of recent controversy is whether historical cell site location information merits Fourth Amendment protection, in view of its capacity to provide intimately detailed tracking information about an individual’s movements over time. Most courts to consider the issue have found themselves constrained by Smith v. Maryland, 442 U.S. 735 (1979), to hold that because the data is “voluntarily” provided to the third party provider to facilitate use of the device, no privacy interest exists. See:

· United States v. Carpenter, 819 F.3d 880 (6^th Cir. 2016)

· United States v. Davis, 785 F.3d 498, 511–13 (11^th Cir. 2015), cert. denied, 136 S. Ct. 479 (2015)

· In re Application of United States for Historical Cell Site Data, 724 F.3d 600, 615 (5^th Cir. 2013)

· In re Application of United States for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 313, 317 (3^rd Cir. 2010)

· United States v. Graham, 824 F.3d 421, 427–28 (4^th Cir. 2016)

In contrast to the Smith, 442 U.S. 735, analysis, which rationalizes extensive personal data collection by service providers as “voluntarily” sharing, in United States v. Jones, 565 U.S. 400 (2012), the Supreme Court held that the Fourth Amendment governed installing a physical GPS tracking device on a vehicle not for privacy reasons, but because it trespassed a property interest in the vehicle. The cognitive dissonance that results from juxtaposing these results has led several courts and Supreme Court Justice Sotomayor...