We recently wrote about a somewhat surprising ruling by the appeals court in the DC circuit saying that long-term use of a GPS to track someone without a warrant violated the 4th Amendment. What was surprising about this is that, while state courts had ruled similarly, the federal courts had almost universally ruled that such tracking was legal. While that case will almost certainly be appealed and seems to have a decent likelihood of ending up before the Supreme Court, it’s apparently already impacting some rulings elsewhere. Chris Soghoian notes that a federal magistrate judge recently rejected the governments’ request for historical cell site data from Sprint, because the government failed to show probable cause (as required under the 4th Amendment):

What’s notable is that the judge admits to having approved similar requests in the past, but refuses to do so this time, as a result of that recent ruling, and noting that the reasoning highlighted that technology is changing the way many view things concerning privacy and surveillance:

The decision in Maynard is just one of several rulings in recent years reflecting a growing
recognition, at least in some courts, that technology has progressed to the point where a person
who wishes to partake in the social, cultural, and political affairs of our society has no realistic
choice but to expose to others, if not to the public as a whole, a broad range of conduct and
communications that would previously have been deemed unquestionably private….

As a result of such decisions, I believe that magistrate judges presented with ex parte
requests for authority to deploy various forms of warrantless location-tracking must carefully re-
examine the constitutionality of such investigative techniques, and that it is no longer enough to
dismiss the need for such analysis by relying on cases such as Knotts or, as discussed below,
Smith v. Maryland…. For the reasons discussed below, I now conclude that the Fourth Amendment
prohibits as an unreasonable search and seizure the order the government now seeks in the absence of a showing of “probable cause, supported by Oath or affirmation[.]”

Nice to see some judges recognizing this, though it remains to be seen how many others will agree… and how the Supreme Court reacts to all of this.

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