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Fifth Circuit rules warrant not required to track cell phones

The U.S. Court of Appeals for the Fifth Circuit [official website] ruled [opinion, PDF] Tuesday that probable-cause warrants are not required to access cell phone location information. In a 2-1 decision, the Fifth Circuit reversed lower court decisions that said the location data was protected by the Fourth Amendment [Cornell LII backgrounder]. The court stated that warrantless access is "not per se unconstitutional" because mobile location data is "clearly a business record" and therefore unprotected by the Fourth Amendment. Authorities were requesting cellphone data under the Stored Communications Act [Cornell LII backgrounder], part of the Electronics Communications Privacy Act, which the court stated gives authorities the option of obtaining a court order, but does not require the higher standard necessary for a search warrant. The Fifth Circuit is the third federal appeals court to allow authorities to track mobile devices without a warrant.

Courts and lawmakers remain divided on what types of warrants are required to perform cell phone searches. Last week the New Jersey Supreme Court ruled [JURIST report] that police must obtain search warrants before obtaining tracking information from cell phone providers, marking the first time a state supreme court has recognized a Fourth Amendment protection for cell phone location data. Earlier this month the Maine Legislature [official website] voted in favor [JURIST report] of a new law requiring police to obtain a warrant to track a cell phone. In May the Florida Supreme Court [official website] ruled [opinion, PDF] that police need a warrant [JURIST report] to search a defendant's cell phone at the time of arrest. In 2012 the US Court of Appeals for the Seventh Circuit [official website] ruled [opinion, PDF] that a warrantless search [JURIST report] of a suspect's cell phone to collect its phone number does not constitute a violation of Fourth Amendment protections against unreasonable search and seizure.

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