Thursday, June 26, 2014

Cell Phone Week

This week, the Supreme Court decided Riley v. California, unanimously holding that police must get a search warrant to look through cell phone data because "cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.”  As SCOTUSBlog points out in this symposium, this decision will reach far beyond your old flip phone to recast access to cloud-based data and the third-party doctrine. The Electronic Frontier Foundation (EFF) talks about the magnitude of Riley here.

Today, the New Yorker has an article, What Your Cell Phone Can't Tell the Police, that calls into question the accuracy of cell-tower location information (this is different from the insidious GPS tracking data that live in your iPhone). Apart from reliability is the question of whether a warrant is needed to get those records. Riley probably answers that. One more point: this sort of data may be subject to a Daubert challenge.

And the Eleventh Circuit just held (not this week, but June 11), in a case of first impression, that cellphone site location information -- imprecise as it may be -- obtained under the Stored Communications Act (which does not require a warrant) actually does require a warrant. 

The question,
[W]hether [the Fourth Amendment] protection covers not only content, but also the transmission itself when it reveals information about the personal source of the transmission, specifically his location.
The answer,  
[W]e hold that cell site location information is within the subscriber’s reasonable expectation of privacy. The obtaining of that data without a warrant is a Fourth Amendment violation.
Of course, then the defendant got Leon-ed. But this is an important case for many reasons, not the least of which is that the Court found that the Fourth Amendment demanded more than the statute required. 

Maybe the law is starting to catch up with technology. Slowly. At least the courts recognize that data is different. Quite a week for cell phones.


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