In November of last year, I attended the Bar Association of the Fifth Circuit's Appellate Advocacy Seminar. The seminar included watching oral arguments at the Court, and a buddy of mine and I watched the arguments of In Re: Application of the United States of America for Historical Cell Site Data.
Frankly, I was taken aback by the government's argument. The government urged that it could request records of historical cell phone data, and the presiding magistrate had no discretion to refuse the request. And the government's request wasn't limited to any certain information; it could request anything it wanted.
Professor Susan Freiwald of the University of San Francisco Law School argued the case on behalf of the magistrate and district court who held that the government had to prove probable cause for the records. As far as the oral arguments went, she won the day.
But she didn't win the case. The Fifth Circuit recently ruled that the government has carte blanche authority to get the cell phone records and there is nothing a magistrate or district court judge can do about it.
It said that its opinion is a narrow one.
Recognizing that technology is changing rapidly, we decide only the narrow issue before us. Section 2703(d) orders to obtain historical cell site information for specified cell phones at the points at which the user places and terminates a call are not categorically unconstitutional. We do not address orders requesting data from all phones that use a tower during a particular interval, orders requesting cell site information for the recipient of a call from the cell phone specified in the order, or orders requesting location information for the duration of the calls or when the phone is idle (assuming the data are available for these periods). Nor do we address situations where the Government surreptitiously installs spyware on a target’s phone or otherwise hijacks the phone’s GPS, with or without the service provider’s help.
But that is small comfort given the opinion's underlying reasoning.
Read the opinion here