Tuesday, March 6, 2018

Your mission: challenge the ping!

The Tenth Circuit would like to decide whether a "ping"---a service provider's court-ordered identification of a cellphone's real-time location---is a "search" for Fourth Amendment purposes. 

But first, the issue must be properly raised and briefed. Do you have the right case, and are you up for the task? If so, take a look at the Tenth Circuit's decision this week in United States v. Banks, rejecting a pinging challenge on other grounds, but noting that "whether pinging a phone to determine its current location is a search under the Fourth Amendment—remains an open question in this circuit," and discussing the considerations and cases that might come into play in answering that question.

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