Oral Arguments in Third Circuit Electronic Privacy Case – Should the DOJ Need a Warrant to Obtain Location Data from Cell Phones?

Last week, the Third Circuit, which hears appeals from federal cases in Pennsylvania, Delaware, and New Jersey, heard oral arguments in a worrisome electronic privacy case: In The Matter Of The Application Of The United States Of America For An Order Directing A Provider Of Electronic Communication Service To Disclose Records To The Government. The Department of Justice is challenging a denial of a request for cell phone location data in a drug-trafficking case, which was signed by all of the magistrate judges in the Western District of Pennsylvania and affirmed by the district court judge.

At oral arguments, Third Circuit Judge Sloviter seemed understandably concerned about the privacy implications and potential over-reaching by the government in allowing police to obtain information about a person’s location based on cell phone data without probable cause. Judge Tashima, visiting from the Ninth Circuit, seemed more sympathetic to the government’s argument. Judge Roth, also on the panel, did not attend the oral arguments. An audio recording of the arguments is available here.

Professor Orin Kerr, at The Volokh Conspiracy blog, explained the case in this post and blogged the oral arguments in this post. His posts, and the extensive discussion in the comments, provide a good overview of the legal arguments involved in the case. We have also posted the appellate briefs below. We disagree with Professor Kerr’s Fourth Amendment argument that Smith v. Maryland (in which the Supreme Court held that use of a pen register is not a “search” for Fourth Amendment purposes because the user of the phone voluntarily conveys the outgoing numbers to the phone company) is applicable precedent, because a cell phone user actively dials a phone number, but only passively shares his location with the phone company. We hope that the Third Circuit decides that a warrant is necessary for the police to obtain such information.

The statute involved is 18 U.S.C. § 2703(c), which is available here.

The Atlanta Journal Constitution article about this case is available here.

Briefs and Orders in the Western District of Pennsylvania:
The District Court Order affirming magistrate judge’s ruling denying the government’s request is available here.
The Government’s reply memorandum of law in support of request for review is available here.
The Amicus brief of the Federal Defender is available here.
The Amicus brief of Susan Freiwald is available here.
The Amicus brief of the Electronic Frontier Foundation, the ACLU, and the Center for Democracy and Technology is available here.
The Government’s memorandum of law in support of request for review is available here.
The Magistrate Court Order Denying Government Request to Obtain Stored Cell Site Records without Probable Cause is available here.

Briefs to the Third Circuit:
The Amicus brief of Susan Freiwald is available here.
The Amicus brief of the Electronic Frontier Foundation, the ACLU, and the Center for Democracy and Technology is available here.