Just days ago, we reported about the New Jersey Supreme Court’s decision to outlaw warrantless cellphone tracking. That blog post ended with the sentence “Perhaps the matter is on course for a SCOTUS date sometime soon”, and that prediction is looking even more likely in the wake of yesterday’s In Re: Application of the United States of America for Historical Cell Site Data opinion handed down by the Fifth Circuit, which held that cellphone data, as it relates to user location, is a business record, and has nothing to do with the government. So, it is not entitled to any Fourth Amendment protections, and law enforcement can use it freely and without needing a warrant.

Or, in the Court’s own words:

The cell service provider collects and stores historical cell site data for its own business purposes, perhaps to monitor or optimize service on its network or to accurately bill its customers for the segments of its network that they use. The Government does not require service providers to record this information or store it. The providers control what they record and how long these records are retained. The Government has neither “required [n]or persuaded” providers to keep historical cell site records… In the case of such historical cell site information, the Government merely comes in after the fact and asks a provider to turn over records the provider has already created.

This decision aligns the Fifth Circuit with the Sixth Circuit, which reached a similar conclusion in last August’s U.S. v. Skinner. The Third Circuit has also addressed this issue, and concluded that judges could require warrants for historical cell phone location tracking.

Returning to yesterday’s Fifth Circuit opinion, the court did offer some words of advice to privacy advocates who would otherwise be troubled by the outcome:

We understand that cell phone users may reasonably want their location information to remain private, just as they may want their trash, placed curbside in opaque bags… But the recourse for these desires is in the market or the political process: in demanding that service providers do away with such records (or anonymize them) or in lobbying elected representatives to enact statutory protections.

The ACLU, who had submitted an amicus brief with the EFF, were not too pleased with the decision. On their blog, staff attorney Catherine Crump wrote:

This ruling is troubling because, as we and the Electronic Frontier Foundation (EFF) argued, only a warrant standard fully protects Americans’ privacy interests in their locations and movements over time. Cell phone companies store records on where each of us have been, often stretching back for years. That location information is sensitive and can reveal a great deal—what doctors people visit, where they spend the night, who their friends are, and where they worship. Given the sensitivity of these facts, law enforcement agents should have to demonstrate to a judge that they have a good reason to believe that they will turn up evidence of wrongdoing before gaining access to information that can paint a detailed picture of where a person has been over time.

Let’s see which court handles this issue next, and how they decide it.