The Supreme Court’s decision in United States v. Jones, rendered last January, proved anticlimactic for those followers of technology and the Fourth Amendment jurisprudence expecting an embrace or rejection of the mosaic theory promulgated by the D.C. Circuit in Maynard. Though the Court voted unanimously, holding that the government’s placement of a GPS tracking device on a car without warrant constituted a search under the Fourth Amendment, the Justices were divided as to why. Five, invoking common-law trespass theory, were perturbed by the physical act of attaching a GPS device onto a car. Four, invoking a more modern privacy theory expounded in cases such as Katz v. United States, were bothered by the surveillance’s violation of a suspect’s reasonable expectation of privacy. The court refrained from the question of whether a warrant is required for what it concluded to be an unreasonable search.
Since Jones was decided (and remanded back to the district court), an appellate court — the Sixth Circuit — has entertained the question of reasonable expectation of privacy and the warrant requirement under the Sixth Amendment. In an opinion that appears to push back on the D.C. Circuit’s in Maynard, the court held that, because cell phones transmit cell-site location data at all times, a cell phone user has no reasonable expectation of privacy in his/her location.
But the dearth of SCOTUS insight may be rectified in the coming years. Presently, the Jones case is again being litigated in federal court (the United States District Court for the District of Columbia), and this time, the case confronts issue of cell-site location data head-on. Jones is moving to suppress cell-site location data for an account belonging to Jones’ co-conspirator, arguing that one possesses a reasonable expectation of privacy over cell tower information. Opposing the motion, the government invokes both the third-party doctrine as well as the Court’s opinion in the original Jones case. “No reasonable expectation of privacy exists in the routine business records obtained from the wireless carrier in this case [because] they are third-party records. . . . A customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records that were never in the possession of the customer.” The government further argues for the irrelevancy of Jones, because the “compelled production of cell-site location records ‘does not involve a physical trespass to property.’ ” The government additionally argues for the irrelevance of Maynard and its mosaic theory, also asserting that the theory has no bearing on a cell phone location data case. Here, the location data is far less precise than the GPS tracking at issue in Maynard, and too imprecise to place a wireless phone inside a constitutionally protected space; the suspect made an affirmative choice to use his phone or initiate a communication; and DC district court judges have already rejected the application of Maynard to cell phone location data. If the case is appealed after the district court renders a decision, the D.C. Circuit side can either side with the government by distinguishing this case from Maynard, or extend the mosaic theory from the GPS-on-vehicle to cell phone situation. And, if the remanded Jones case again reaches the Supreme Court, the Court may have to at last confront the question of whether cell phone users have a reasonable expectation of privacy over cell phone location data. Indeed, civil libertarians and law enforcement hardliners alike are hoping that the Court finally address this hot-button question.