Tuesday, August 9, 2011
"Court Rules That Police Cannot Use Warrants to Obtain Cell Phone Location of Person Who is Subject of Arrest Warrant"
Orin Kerr discusses the opinion at The Volokh Conspiracy. In part:
My own view is that Judge Gauvey is pretty clearly wrong. Most fundamentally, I don’t think location information of phones is protected by the Fourth Amendment under Smith v. Maryland, for all the reasons I have explained at length. Part of the problem is that the Fourth Amendment does not deal in abstractions, with categories such as the right to privacy in “location” or right to privacy in “movement.” The Fourth Amendment is much more granular: The relevant question is whether the particular data stored in a particular place on a particular server is protected by the Fourth Amendment, and if so, who is it who has those rights and under what circumstances can that particular information be accessed and disclosed. Given that, Judge Gauvey’s abstract categories produce more heat than light. It doesn’t help that Judge Gauvey relies significantly on the “mosaic theory” opinion that the Supreme Court recently agreed to review.