Mar 052012
 
 March 5, 2012  Court, Surveillance, U.S.

Orin Kerr writes:

No, concludes Judge Bennett in United States v. Graham (District of Maryland, March 1, 2012). Judge Bennett concludes that historical cell-site records are not protected because they fall under the third-party doctrine:

Like the bank records at issue in [United States v.] Miller, the historical cell site location records in this case are not the ‘private papers’ of the Defendants—instead, they are the ‘business records’ of the cellular providers. Federal law does not mandate that cellular providers create or maintain this type of data,11 and even courts that have concluded that government acquisition of cumulative cell site location records can violate the Fourth Amendment generally acknowledge that these records are ‘generated in the ordinary course of the provider‘s business.’ In re Application of the United States, 747 F. Supp. 2d 827, 841 (S.D. Tex. 2010) (Smith, Mag. J.), appeal docketed, No. 11-20554 (5th Cir. Dec. 14, 2011). Moreover, insofar as historical cell site records are created and maintained by the cellular providers, individual customers do not generally have access to those records, and could not be expected to produce them in response to a subpoena. Under the reasoning of Miller, therefore, historical cell site location records are the provider‘s business records, and are not protected by the Fourth Amendment.

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