Jed Davis was quoted in an article in Law360 entitled "High Court Phone Case Could Crimp Use of Location Data" in which he discussed the Supreme Court's decision to review the Sixth Circuit's 2016 decision in Carpenter v. United States. In its 2016 decision, the Sixth Circuit, agreeing with most circuits that have previously ruled on the issue, held that when a carrier generates cell-site data in the ordinary course of serving the user of a target wireless phone, the 4th Amendment does not condition the government's acquisition of those records on its obtaining a warrant based on probable cause. Rather, it is constitutionally sufficient if the government provides a court with statutorily-mandated proof showing that the requested cell-site records are relevant and material to an ongoing criminal investigation.
"There's at least two questions raised by the cert grant: One is whether or not warrantless access to historical phone records created by a third party is permitted. And the second is, even if so, is there some point in the course of an investigation, some number of days, when this collection becomes so invasive that a warrant is required?" Jed told Law360 in an interview. "It's about time those issues are resolved."
For more than 20 years, Jed said, investigators have been authorized by the Stored Communications Act to obtain historical cell-site data on a showing of "relevance and materiality," a lower standard than the probable cause requirement for a search warrant. And, investigators have been authorized to use criminal subpoenas to acquire detailed third-party records, such as credit card history without prior judicial permission, based merely on relevance. Like cell-site data, such records can be pieced together to reveal a person's daily activities, Jed explained.
"The Supreme Court will have to resolve whether there's any constitutional difference between a person powering on their phone to obtain cell service and a person transacting other business with third parties who likewise generate detailed records relating to that person's movements and conduct," he said.