COMMENT: Digital Technology and Analog Law: Cellular Location Data, the Third-Party Doctrine, and the Law‘s Need to Evolve

Justin Hill *

Law enforcement agencies consistently utilize Cell Site Location Information (“CSLI”) generated by a suspect‘s cell phone to place that suspect at the scene of a crime. Despite the widespread use of these tactics, consensus in the legal realm regarding the Fourth Amendment‘s protection of CSLI remains unrefined. The most recent federal circuit courts to address the issue have each applied the third-party doctrine to find no Fourth Amendment protection of the CSLI information in question.1 However, this apparent uniformity is deceptive. Two of those circuits came to opposite conclusions before the panel opinions were reversed en banc. Each decision has also been met with vociferous opposition within the circuit. Furthermore, the Third Circuit, the first to address the issue, found that the third-party doctrine did not apply at all. Adding fuel to the fire, three state high courts have taken on the issue and found the gathering of at least some forms of CSLI without a search warrant unconstitutional on state grounds. Twelve additional states have statutorily insured privacy protection in at least some forms of CSLI data.

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* J.D. 2018, University of Richmond School of Law. B.A., 2014, American Military University; A.A., 2011, Defense Language Institute. I would like to extend a special thank you to Professor Clark Williams for his invaluable guidance and support. I would also like to thank my mother for giving me the strength to change; without it, I would not be here.