For now, the ruling sets an important precedent: It allows law enforcement officials in the Fifth Circuit to chronicle the whereabouts of an American with a court order that falls short of a search warrant based on probable cause.
“This decision is a big deal,” said Catherine Crump, a lawyer with the American Civil Liberties Union. “It’s a big deal and a big blow to Americans’ privacy rights.”
The group reviewed records from more than 200 local police departments last year, concluding that the demand for cellphone location data had led some cellphone companies to develop “surveillance fees” to enable police to track suspects.
In reaching its decision on Tuesday, the federal appeals court went on to agree with the government’s contention that consumers knowingly give up their location information to the telecommunications carrier every time they make a call or send a text message on their cellphones.
“That means it is not protected by Fourth Amendment when the government goes to a third-party service provider and issues something that is not a warrant to demand production of those records,” said Mark Eckenwiler, a former Justice Department lawyer who worked on the case and is now with the Washington law firm Perkins Coie. “On this kind of historical cell site information, this is the first one to address the core constitutional question.”