Aug 152012
 August 15, 2012  Court

Orin Kerr offered some comments on yesterday’s opinion in U.S. v. Skinner, previously mentioned on this blog.  Here’s part of his commentary:

1) Unless I’m just missing something obvious, the opinion seems pretty vague on the technological facts. The majority opinion initially says that the government obtained a court order ordering the cell phone company to release “cell site information, GPS real-time location, and ‘ping’ data” for the phone used by the suspect. It then says that the government tracked the suspect’s location by “pinging” the cell phone over three days. Later on, the majority opinion (and the concurrence) refers to the location information as “GPS location information.” But cell-cite information and GPS information are different, and “pinging” the cell phone could mean actively sending a request for cell-site data, actively sending a request for GPS data, or something else. So I’m a bit murky on the facts of what happened, which makes it hard to know what to make of the court’s analysis.

2) The murkiness of the facts are particularly unfortunate because the reasoning of the majority opinion relies heavily on cell phones broadcasting location information as just part of the way that they work. But if pinging the cell phone means actively sending a request to the phone to return its current GPS location, that’s not just how cell phones work: That’s the product of the cell phone provider setting up a mechanism by which the government can manipulate the phone into revealing its location. That seems to be a very different category of Fourth Amendment problem than a problem of how a technology “naturally” works.

Read more on The Volokh Conspiracy.


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