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The Constitutional questions here are very interesting and rapidly evolving. For example, is requesting cell site location data like tracking a beeper in a can
by einhverfr 14y ago
The Constitutional questions here are very interesting and rapidly evolving. For example, is requesting cell site location data like tracking a beeper in a can of ether on a public highway or like a pen register? Or is it more like a wiretap of a search of a building? What happens when GPS is turned on?
There isn't a lot of case law here. In general though courts have expressed concern about the sorts of surveillance that are becoming possible. See, for example the cell site location arguments at the 3rd circuit appeals court or the opinions of Sotomayor and Alito in Jones v. United States last year (Alito's opinion concurring in judgement was joined by Kagan, Breyer, and Ginsberg. Sotomayor joined the majority of Roberts, Scalia, Thomas, and Kennedy as a narrow way to resolve the case, but she also went beyond that and endorsed Alito's logic as well, which complicates counting votes).
- jakewalker 14y agoI highly recommend Orin Kerr's article, The Case For The Third Party Doctrine, on this issue (available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1138128 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1138128). A much different constitutional analysis when the data is requested from a cellular service provider, versus when it is gathered directly by state actors (police). Kerr is simply fantastic on these issues. Worth reading more of his Fourth Amendment writing if you are interested.
- einhverfr 14y agoKerr is an important professor and author in this area. He has also been a staunch academic opponent to further Constitutional controls, which has made his writings on Jones v United States and the 3rd Circuit cell site location case interesting to read. Look up things he has written about "Matrix" theory of fourth amendment protections. I don't think Kerr really grasps the level of unease that the courts are developing regarding the capability of dragnet surveillance by the government of this sort. But definitely, anything he has written is pretty much a must-read in this field. Edit: Also Prof. Kerr blogs at http://www.volokh.com http://www.volokh.com and http://www.scotusblog.com http://www.scotusblog.com