Loyal blog readers may recall my post of two weeks ago in which I discussed a decision by the New Jersey Supreme Court holding that cell phone location data implicates privacy concerns under that state’s constitution. You may also recall my observation that at the federal level the same question had yielded differing responses.

Well. . . the Fifth Circuit has weighed in and, in a split (2-1) decision, come to a different conclusion than did its New Jersey counterpart, holding that historical cell-phone location information does not trigger Fourth Amendment protections and, hence, does not require a warrant before it can be collected. In re Application of the USA for Historical Cell Site Data, No. 11-20884 (5th Cir. July 30, 2013).

The court rested its decision on the fact that the location information is recorded initially by a private actor (the mobile carrier) in furtherance of a private transaction between the subscriber and carrier. Because the information is recorded for business purposes, it is a business record, said the court, and the government is not causing its creation or retention.

Moreover, the court found that users voluntarily convey that location information when they use their phones to make their calls, and the use of the phones themselves is “entirely voluntary.”

For all of those reasons, in the court’s view, the cell phone user possesses no reasonable expectation of privacy in that information. Notably, the court made clear that its holding was limited to historical information. It did not address the question of location information requested at the time the call is placed.

The court rejected the contention that societal expectations of privacy have evolved to include “non-content” information in a way that may not have been the case in the past, when the types of non-content information that were available revealed far less about a subscriber than is the case today.

The court summarily dismissed those concerns, noting

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 . . . to remain so. But the recourse for their desires is in the market or the political process. . . The Fourth Amendment, safeguarded by the courts, protects only reasonable expectations of privacy.

(Emphasis in original.)

The Fifth Circuit’s decision is not surprising. Federal courts have long held that information voluntarily provided to another loses any reasonable expectation of privacy. Nonetheless, it seems to me, at least, that the court unduly minimized the impact of technological change.

For example, it does not seem reasonable to suggest that the use of a mobile phone in today’s world is truly “voluntary.” How many of us could get along without one? (I certainly could not.)

Nor does it seem entirely correct to treat the vast quantities of easily analyzed information available today the same as the far more limited datasets of years past. Using that information today allows for a far more complete and complex portrait of an individual and her activities than was conceivable before.

An “all or nothing” constitutional distinction between “content” and “non-content” seems increasingly inadequate and out of step with contemporary expectations of privacy.

Regardless, the Fifth Circuit’s decision falls squarely in the mainstream of existing federal constitutional precedent. As a result, those concerned with the ruling who don’t live in New Jersey or in other states that follow its lead may need to attempt increased statutory protections – turning to the very “political process” cited by the court.