Over on The Volokh Conspiracy, Orin Kerr blogs about oral arguments in a case before the Third Circuit in which the government wants cell phone location data to be made available to it without any warrant:
The Third Circuit held oral argument today in the case on the legal standard for historical cell-site information. I blogged about this important case here last week, and the oral argument audio from this morning has been posted here at the Third Circuit’s website. It was a very unusual and free-ranging argument that went for more than 80 minutes, almost three times the scheduled half-hour. I wanted to blog my thoughts on the argument as I listened to it, as well as provide some of the key exchanges based on my best effort to transcribe them.
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The most interesting exchange happens at the 28-minute mark. Judge Sloviter has been asking lots of questions about the technology, and she explains that she wants to say why she is asking so many technology questions. Judge Sloviter:
Let me tell you. As I work on this, I listen to the news. And you know that there are governments in the world that would like to know where some of their people are or have been. For example, have been at a what may be happening today in Iran — have been at a protest. Or at a meeting, a political meeting. Now can the government assure us that (1) it will never try to find out that information and (2) whether that informaton would not be covered by [18 U.S.C. 2703](d)?
Eckenwiler responds that he can’t speak to future hypotheticals like that. Judge Sloviter responds:
But don’t we have to be concerned about that? If the statute would permit the government — not this government right now, but a government — to get information as to where, and it doesn’t have a GPS, but this could be instead of a GPS, wouldn’t the government — a government — find it useful, if it could get that information without probable cause?
Read more on The Volokh Conspiracy.