Featured Paper: Bridging the Cellular Divide: A Search for Consensus Regarding Law Enforcement Access to Historical Cell Data

From the February 2014 Issue of the Cardozo Law Review:

Zachary Ross, Bridging the Cellular Divide: A Search for Consensus Regarding Law Enforcement Access to Historical Cell Data.

Excerpt:

Technological change is often a double-edged sword--it enables and enriches our lives, but also allows for new means of exploitation and control. As social, architectural, and market barriers protecting longstanding notions of personal space erode, individuals increasingly rely on the legal system as a defense to arbitrary invasions of privacy. Paradoxically, the same forces that make the need for robust privacy protections more compelling also make the existing legal framework outdated and inapposite. 

These contradictions are readily apparent in the contemporary debate over the legal restrictions on government access to cell site location information (CSLI). This data, constantly collected by cell phone service providers (CSPs) in order to manage their networks, has the potential to provide a detailed map of an individual cell user's movements from place to place over extended periods of time. Furthermore, the quantity and precision of location data collected by CSPs is constantly increasing, becoming more revealing, and more valuable to law enforcement in the process. Despite the potential intimacy of this data and its growing relevance to criminal investigations, the legal protection afforded CSLI is hotly disputed, and at present varies greatly among (and sometimes even within) jurisdictions-- with courts sometimes requiring a warrant, and sometimes allowing unfettered access upon a lesser evidentiary showing. This lack of uniformity has been exacerbated by a recent Fifth Circuit ruling on government access to CSLI, which generated a different rule than had previously been adopted by the Third Circuit. The vastly disparate treatment of government requests for CSLI has created a chaotic system ripe for abuse, and all but guaranteed Supreme Court review of the issue in the near future, as the Court itself seems to have implicitly acknowledged. 

This Note will examine the complex interaction between privacy, surveillance, and technology through an exploration of the contested legal terrain governing law enforcement access to historical CSLI--location data recorded by CSPs which reveal an individual's past movements.