Fifth Circuit Upholds the Warrantless Search of Cell Phone Location Information


By Wassem Amin, Esq.

In a 2-1 decision, the Fifth Circuit Court (link to full opinion in PDF) held that the Government does not need a warrant to obtain Cell Site Location Information (CSLI).  CSLI is the information that is obtained when a person’s cell phone “pings” nearby towers  of his or her service provider.  The cell phone pings the three nearest towers, thereby triangulating the owner’s approximate location.  In an area with high cell phone tower density, such as most metropolitan cities, the cell phone’s actual location could be within a few feet of the triangulation.

Cell phone service providers store the data gathered, including location data, every time a cell phone pings its towers.  In essence, the Government could use that information to determine a person’s location and movement over a period of time.

There is a split of opinion between Courts in the United States as to whether this information is protected under the Fourth Amendment’s Search & Seizure Clause–which would trigger the warrant and probable cause requirement.  The Government, in almost all cases that have been appealed so far, and in this case, relies on the antiquated Stored Communications Act (SCA), specifically Section 2703(d) to obtain this information without a warrant.  Also know as a 2703(d) order, this provision allows the Government to obtain a person’s CSLI if it can show “specific and articulable facts” that it needs it–a standard that is far less than probable cause.

In this case, what was especially alarming is that the Government contends that this location information is only obtained when a user makes a phone call.  However, a cell phone pings its towers not only when making a call, but every time it uses data services.  The ubiquity of smartphones in today’s society makes this especially problematic.  Most smartphones automatically use data to update, for example, a user’s email.  This continuous communication between the cell phone and the service provider’s towers allows the Government to precisely track a person’s past movements—and predict future ones.

The reasoning used by the Fifth Circuit indicates that the Court simply does not understand the way CSLI works and, in fact, many other courts, such as the Sixth Circuit, do not as well.  In affirming that the Government can continue to obtain CSLI records without a warrant, it noted the Government’s assertion that CSLI is transmitted only during phone calls.  Relying on that fact, the Court goes on to say that since this information is voluntarily transmitted by the user, the user loses his or her “reasonable expectation of privacy” that is required under the Fourth Amendment.

The wide divergence in opinion between Courts is in part because of the fact that there were no smart phones or even wide spread consumer cell phone use when the SCA was enacted.  The SCA is an antiquated statute that must be overhauled in order to address, and prevent, use of CSLI without a warrant by the Government.

The Fifth Circuit’s holding demonstrates the need for the United States Supreme Court to clarify the Fourth Amendment’s applicability in this area–an opportunity it side-stepped in US. v. Jones. The ambiguity of the current law necessitates that the inquiry be answered on a case-by-case basis by thousands of different magistrate judges—many of whom who have their own understandings as to what is private or not and may lack the necessary technological expertise to ascertain what kind of information is disclosed.

*The opinions expressed in this post are that of the Author’s and do not necessarily reflect the Firm’s views.

3 thoughts on “Fifth Circuit Upholds the Warrantless Search of Cell Phone Location Information

  1. You need targeted traffic to your website so why not get some for free? There is a VERY POWERFUL and POPULAR company out there who now lets you try their website traffic service for 7 days free of charge. I am so glad they opened their traffic system back up to the public! Check it out here:

  2. Hello Web Admin, I noticed that your On-Page SEO is is missing a few factors, for one you do not use all three H tags in your post, also I notice that you are not using bold or italics properly in your SEO optimization. On-Page SEO means more now than ever since the new Google update: Panda. No longer are backlinks and simply pinging or sending out a RSS feed the key to getting Google PageRank or Alexa Rankings, You now NEED On-Page SEO. So what is good On-Page SEO?First your keyword must appear in the title.Then it must appear in the URL.You have to optimize your keyword and make sure that it has a nice keyword density of 3-5% in your article with relevant LSI (Latent Semantic Indexing). Then you should spread all H1,H2,H3 tags in your article.Your Keyword should appear in your first paragraph and in the last sentence of the page. You should have relevant usage of Bold and italics of your keyword.There should be one internal link to a page on your blog and you should have one image with an alt tag that has your keyword….wait there’s even more Now what if i told you there was a simple WordPress plugin that does all the On-Page SEO, and automatically for you? That’s right AUTOMATICALLY, just watch this 4minute video for more information at. Seo Plugin

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s