I’ve been waiting to hear Professor Freiwald’s reaction to the recent Third Circuit decision . Here we go…
Danielle Citron writes:
Professor Susan Freiwald generously agreed to blog about the recent Third Circuit decision regarding the privacy protections afforded cell phone location data. Here is Professor Freiwald’s commentary on the case:
The Third Circuit has issued the first Appellate court decision on the standard by which government agents may compel the disclosure of cell phone subscribers’ location data, i.e., records of the cell towers with which a phone communicates that indicate the phone’s physical location. 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 majority held that Magistrate Judges (MJs) may choose whether to impose a warrant requirement on government agents who seek location data or instead to permit them to satisfy a lower statutory standard (under 18 U.S.C. § 2703(d)) that requires “specific and articulable facts showing … reasonable grounds to believe that the … records … are relevant and material to an ongoing criminal investigation.” (D order standard.) The majority remanded to the MJ who had first considered the government’s application to require either a warrant based on probable cause or to impose the D order standard and then to determine whether the government’s application satisfies the chosen requirement. The majority also directed the MJ to make factual findings and provide an explanation if it demands a warrant.
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