Fifth Circuit to hear cell site data case Tuesday

Tomorrow, the Fifth Circuit will hold oral arguments for its much anticipated case on cell site location information. A magistrate judge denied the government's 2703(d) request for 60 days of location data, holding that a search warrant was needed. The district court judge agreed, and the government appealed.

The predominant issue in the case is whether CLSI is protected by the Stored Communications Act alone or also by the Fourth Amendment. If it's only the former, law enforcement need only show "specific and articulable facts," rather than the higher standard of probable cause required by the Fourth Amendment. Because, the government argues, the data is held by a third party, the Fourth Amendment does not apply.

The case is In Re: Application of the United States of America for Historical Cell Site Data (No. 11-20884).

Here's a list of court filings in the case:

• Government's Brief
• Professor Orin Kerr's Amicus (arguing the question is not ripe)
• Professor Susan Freiwald's Amicus
• EPIC's Amicus
• ACLU, EFF, CDT, and NACDL Amicus
• Government's Reply Brief

And here are a commentary links on the case:

• Magistrate Judge Smith's defense of his decision
• Professor Kerr - Here, here, here, here, here, and here
• Professor Freiwald

I'll post a link to the oral argument once the recording is available.