OpenStack 08/09/2015 (a.m.)

• Fourth Circuit adopts mosaic theory, holds that obtaining “extended” cell-site records requires a warrant - The Washington Post

  Tags: surveillance state, cellphone-tracking, litigation, 4th-Amendment

  • A divided Fourth Circuit has ruled, in United States v. Graham, that “the government conducts a search under the Fourth Amendment when it obtains and inspects a cell phone user’s historical [cell-site location information] for an extended period of time” and that obtaining such records requires a warrant.

    The new case creates multiple circuit splits, which may lead to Supreme Court review. Specifically, the decision creates a clear circuit split with the Fifth and Eleventh Circuits on whether acquiring cell-site records is a search. It also creates an additional clear circuit split with the Eleventh Circuit on whether, if cell-site records are protected, a warrant is required. Finally, it also appears to deepen an existing split between the Fifth and Third Circuits on whether the Stored Communications Act allows the government to choose whether to obtain an intermediate court order or a warrant for cell-site records.

    This post will cover the reasoning of the new case in detail.

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