The Fourth Amendment and the Stored Communications Act: Why the Warrantless Gathering of Historical Cell Site Location Information Poses No Threat to Privacy

Abstract

This Comment argues that law enforcement agencies should not be required to obtain a warrant to access records that contain historical CSLI, but rather should be able to gain access to them under the less stringent requirements outlined in the Stored Communications Act (SCA). Moving to a more restrictive standard could have a disastrous effect on the government’s ability to guard against threats to public safety. Furthermore, by examining historical CSLI, law enforcement can rarely, if ever, intrude upon any person’s reasonable expectation of privacy because the laws and procedures currently in place do not, as some have suggested, pose a threat to our constitutional right to privacy. 

Part II of this Comment briefly explains cellular telephone technology and how CSLI is created, as well as differentiates between historical CSLI, which is the subject of this Comment, and real-time CSLI, which is much less controversial in the courts. Part III discusses statutory and case law relevant to the gathering of historical CSLI. Part IV examines the current state of the law, including the recent trend toward a probable cause standard to access historical CSLI, and the recent Third Circuit decision that declines to require such a standard. Part V analyzes the proper standard and argues that the lesser standard enunciated in the SCA is the appropriate standard for historical CSLI. Part VI discusses the impact of moving toward a warrant requirement and some of the harmful consequences that could arise from adopting a probable cause standard for law enforcement to obtain historical CSLI. Part VII concludes.