While some of us were dancing a little jig and yelping “whoop-de-doo!” over a magistrate judge’s decision in New York, Orin Kerr was less than thrilled:
A few federal court opinions have been making a big public splash recently by taking surprising positions on how the Fourth Amendment applies to location surveillance. The latest opinion in the line is Magistrate Judge James Orenstein’s decision in In The Matter Of An Application Of The United States Of America And Order For An Order Authorizing The Release Of Historical Cell-Site Information, handed down on Friday. The decision holds that historical cell-cite data — records generated by cell phone providers in the ordinary course of business that indicate which cell towers were communicating with a phone, and thus, the rough location of the phone — are protected by the Fourth Amendment and its warrant requirement.
It’s only a decision by a Magistrate Judge, and it is not binding on anyone. But it is an extraordinary opinion, in my view: It’s an extraordinary result, reached in an extraordinary way, and based on an extraordinary number of errors. In this post, I want to explain the decision and then explain why I think it is plainly incorrect as a matter of Fourth Amendment law.
Read more of Orin’s analysis on The Volokh Conspiracy.