Wednesday, August 19, 2015
Monu Singh Bedi (DePaul University College of Law) has posted Fourth Amendment Doctrine Mash-Up: The Curious Case of Cell Phone Location Data on SSRN. Here is the abstract:
The third party and public disclosure doctrines are long standing hurdles to Fourth Amendment protection. Federal courts have recently invoked these doctrines when determining whether police can acquire cell phone location data without constitutional scrutiny. But these rulings are all over the map. Courts disagree not only on whether this information is constitutionally protected but also if one, both, or neither of these doctrines applies. A major part of the inconsistent results rests on a hitherto overlooked tension between the doctrines. While commonly associated together, these doctrines turn out to have very different triggers. The third party doctrine contemplates non-public information that is disclosed to an actual third party whereas the public disclosure doctrine focuses on public movements that are susceptible to visual surveillance. This is the first essay to analyze these distinct features and, in turn, harmonize the doctrines in the cell phone location data context.