Nathaniel Burney of The Criminal Lawyer takes issue with the New York TImes story "Warrantless Cellphone Tracking Is Upheld" and numerous likeminded stories about the 5th Circuit decision in In Re: Application of the United States of America for Historical Cell Site Data. Contrary to the tenor of the stories, Burney says that the decision broke no new ground, did not give law enforcement new powers, and did not undermine the Fourth Amendment. Specifically:
- The government wanted to get historical data of cell sites that were used by certain phones. Not real-time data. Not tracking.
- Existing law says this is allowed when the government can provide specific and articulable facts that make it reasonable to conclude that the data will be relevant and material to an ongoing criminal investigation.
- The government did exactly that.
- The lower court screwed up, and applied the rule for getting real-time data. The lower court needs to do it over again. Period.
George Washington Law School's Orin Kerr writes at Volokh Conspiracy that the decision gave the government a "huge win" and was correct in its analysis of all of the merits issues.