The historical location data of a given individual’s cellular telephone can be put to a startling array of uses by state and federal law enforcement.  Really, it is not hard to figure out how.  Cellular phones send out signals at short time intervals in order to establish the presence of a nearby cell tower and to connect to it as required.  This location information is recorded and preserved by the industry’s various service providers—T-Mobile, Sprint and the like.

The police have figured it out.  If one can find the cell phone; in most cases, you can find its user and/or owner.

For law enforcement, this data is a potential goldmine. It can be used to establish a suspect’s real time whereabouts or past travel patterns—both potentially potent pieces of evidence in a wide range of inquires; narcotics cases perhaps most obvious of all.

But such a boon to law enforcement does not come without cost. The same technology that allows police to track a criminal would also permit the government deep insight into the very habits and preferences that once practically defined the term “privacy”. Is it the government’s concern where you worship and when, who your friends are, where they live, and what kind of political activity you choose to engage in? The entire kaleidoscope of choices and interactions that comprise a person’s daily life could now readily be on display.  For many, there is an inherent distaste in so intrusive a governmental eye.

But this data exists and the government knows it exists and knows how to utilize it.  The issue to be determined now is what degree of court supervision is to be imposed on its production and use, if any.

So far there is no consensus at all.  In fact, the opinions that are starting to be handed down are so divergent that it does not seem that a generally accepted approach is anywhere in sight.

An example of this trend is found in two decisions last month: one by the Supreme Court of New Jersey in State of New Jersey v. Earls and an opinion by the United States Court of Appeals for the Fifth Circuit about two weeks later.

The New Jersey case involved Thomas Earls, who was wanted as a suspect in a series of burglaries in Monmouth County.  In an effort to locate Earls, police got his service provider, T-Mobile, to give them information concerning his whereabouts.  Based on the data received, the police were able to secure an arrest warrant, find Earls and, with some additional help from an apparently disgruntled girlfriend, find the stolen property.

T-Mobile surrendered this information without a warrant and this warrantless search was challenged by Earls.  This challenge found its way to the New Jersey Supreme Court.

The Court cited some breathtaking statistics in its opinion:  there are 326.4 million wireless devices in the United States and 91% of adults own such technology.  While this technology is prevalent and certainly useful, these devices, noted Chief Justice Stuart Rabner, can also be used to pinpoint the user’s whereabouts with remarkable precision.  In some instances, the Court noted that a service provider can track a cell phone’s location to a particular room in a given office building.

This intrusive capability was found to implicate Article I, Paragraph 7 of the New Jersey State Constitution, the state Constitution equivalent of the federal Fourth Amendment.  Thus premising its decision of the New Jersey State Constitution, the Supreme Court found that there is an expectation of privacy to be accorded cellular telephone users with regard to this location data.  Accordingly, New Jersey police must obtain a warrant to obtain location data from a service provider or qualify for an exception to the warrant requirement.

But this line of reasoning met its mirror opposite in the Fifth Circuit two weeks later.  In upholding the right of the government to obtain historical location data directly from service carriers without a warrant, the federal appeals court found no justifiable right of privacy at all.  

Instead, the Fifth Circuit presumed that cellular telephone consumers should know the way their devices work and understand that their devices must communicate with cellular towers in order to operate.  Such information, the Court noted, is contained in the underlying contract documents that every subscriber presumably receives and signs.  Thus, and since the use of cellular telephones is purely voluntary, the Court found no constitutional issue at all in the warrantless surrender of this data.
Now, strictly speaking, since Earls rests on the New Jersey State Constitution and the Fifth Circuit on federal authority, one can reconcile the two opinions as a matter of law.  But what cannot be reconciled is the vast logical gulf between them, a gulf that will either widen or reconcile as more courts confront this issue.