By: Philip Stevens
Previously on Legislation and Policy, I addressed several reasons conservatives could support the full legalization of marijuana while retaining the core values of conservatism. I laid out a case for what I thought to be a both reasonable and logical plan towards legalization. In short, I argued the conservative “doctrine facilitates the process of legalization better than any other.” Recently though, Republican Rep. Thomas Massie of Kentucky introduced a bill backed by 221 Republicans and 20 Democrats which would approve spending to undo the recent decriminalization in the District of Columbia. The decriminalization currently states possession of an ounce or less of marijuana is no longer a criminal offense, but a civil offense punishable by a fine of $25. The bill also works to loosen the District’s historically strict gun-control laws, defunding enforcement of the ban on open-carrying.
Contrary to the conclusions of my previous post, Republicans will not accept legalization of marijuana. Such a proposition is idealistic, and legislators know that even with sufficient votes, it would splinter the conservative voter base. Federal decriminalization is far more probable. It would lighten the burden on federal and state police and court systems, decreasing the control of the federal government over private activity. However, when packed into a spending bill that mangles it with other issues such as gun-control decriminalization cannot get far. The recent Republican push to strengthen Washington D.C. gun rights combined with the decreased funding for decriminalization alludes to the future of the Republican Party. There are two simple lessons I think to be learned from this recent move by House Republicans.
First, it is apparent that Republican legislators do not support the decriminalization of marijuana. Understanding this policy helps to understand the sort of campaign Republicans will be running in state congressional elections ahead as well as the 2016 Presidential election. Previously, I mentioned how Democrats will continue to support marijuana legalization more than republicans. However, decriminalization is a separate issue. Decriminalization does not carry the same message of acceptance of law-breakers. It does not condone drug-use as many conservatives dread. Decriminalization also does not withhold punishing pot-users, at least when using in public.
However, as evidenced by the new bill, Republicans are continuing their trend against decriminalization. Worrying though, is not a change in D.C. law, but instead their defiant stance on this issue. Key voting groups such as Millennials, Latino Americans, and African Americans continue to stray away from the Republican platform. House and many Senate Republicans may retain their offices into the future. However, without these key voting groups, the oval office will remain distant. African American males are thought to be arrested more frequently for marijuana possession. Further, Millenials have the highest support for legalization out of any generation. The 2008 presidential election was costly, and the 2012 election demonstrated Republicans lost some campaigning prowess from the 1980s. Republicans cannot forgo catering to such important and growing segments of the American voter base.
Second, Republicans are convinced of the importance of comprehensive gun-control legislation. (I won’t delve into the intricacies of the new D.C. handgun-ruling, as my colleague has already done so quite comprehensively). Publicized gun-related crimes are ingrained in recent memory. Even though homicides committed with a firearm have dropped since the 1990s, the issue of gun control remains stained in the American consciousness, due to the recent horrific massacres including Sandy Hook, Navy Yard, Santa Monica, and Aurora. Democrats have responded with proposals restricting access to weapons and increasing background checks. Republicans however, with increased momentum for the national pressure for legislative response to mass shootings, are working to instead ensure law abiding citizens have greater control over their firearms.
The recent bill reinforces the Republican goal for the nation. By aiming their sights on one of the most staunch gun control territories, Republicans hope to demonstrate the superiority of their position. Further, with Judge Scullin of the District Court for the Northern District of New York, recently ruling against the constitutionality of DC’s historic open-carry ban, Republicans may have momentum needed to ensure their constituents support in future elections.
Where does this leave the city of Washington? As a federal district, it has a limited role in affairs regarding its federal budget. Mayor Vincent Gray warned such action may require shutting down the city’s medical marijuana program. Also, Delegate Eleanor Holmes Norton, the non-voting House member representing the District, called into question Rep. Massie’s bill, saying “Rep. Massie may think D.C. will be one of the most permissive gun jurisdictions in the country — where you can openly carry assault weapons in the street and get a gun with no background check — but he’s wrong.” Delegate Norton is likely correct and such a bill is unlikely to pass the Senate. However, the bill accurately showcases the Republican platform and its membership’s overwhelming agreement on two key issues; pot and guns.
By: James Gossmann
The city of San Jose filed an antitrust suit against Major League Baseball in the hopes of moving the Oakland A’s baseball team to San Jose. Under MLB rules, the San Francisco Giants possess the power to restrict the move, as the A’s would be moving into their designated territory. The San Francisco Giants, afraid of losing revenue by splitting its market share between itself and the A’s, refused to waive its right to territorial exclusivity. The District Court dismissed the suit, citing that Major League Baseball is exempt from antitrust litigation.
The Sherman Act of 1890 was the landmark legislation which attempted to curtail the creation of monopolies and anticompetitive practices. Followed shortly by the Federal Trade Commission Act and the Clayton Act, Congress strengthened the government’s power to regulate any interstate commerce which was in danger of becoming anti-competitive.
Professional sports and antitrust have always come into conflict. While the Sherman Act prohibits every contract, combination or conspiracy in restraint of trade, teams regularly come together to negotiate agreements between players and owners for rules governing the draft system and broadcasting rights in order to create a functioning league. Both of these practices are anticompetitive, but are permitted because such practices preserve the appeal of the various sports. The sport with the most leeway in terms of anti-competitive activity is baseball.
A 1922 Supreme Court case, Federal Baseball Club of Baltimore v. National League, created a unique exemption for baseball by refusing to call it interstate commerce, making baseball immune from antitrust regulation. By declaring “baseball only a game and not a business”, the Court ruled that baseball did not fall under the federal jurisdiction necessary for the Sherman Act to apply. While common sense dictates that this questionable reasoning would have been overturned over the years as the commercial reach of baseball grew to extend beyond state lines, the Supreme Court has refused to overrule the baseball exemption in Toolson v. New York and Flood v. Kuhn. Instead, the Court passed the buck and left it up to Congress to change the baseball exemption.
In recent years, the courts have come close to addressing this issue. A 1993 ruling in the Eastern District of Pennsylvania held that antitrust law does in fact apply to baseball, only for the lawsuit over a team’s relocation to be settled on the eve of the trial. The issue of antitrust application to deny relocation of a baseball team has not been litigated until the Oakland A’s.
Congress’s efforts to correct this Supreme Court mistake has been minimal, with the passing of a law that invalidated an MLB practice of preventing players from trading to competing teams. However, Congress has failed to address the MLB rules governing the relocation of teams.
Luckily however, courts have refused to extend this exemption to all sports, and baseball is the only sport with such an exemption. In other leagues, if an owner is denied the ability to move his team, the league is vulnerable to suit on antitrust grounds. This vulnerability to antitrust regulation was settled in Los Angeles Mem’l Coliseum v. NFL, where the Supreme Court held that the NFL could not prevent the Raiders from moving from Los Angeles to Oakland.
The San Francisco Giants are worth over $1 billion, while the Oakland A’s are valued at only $495 million. This valuation is greatly influenced by the market size where the baseball team lays claim to, as well as the stadium the team plays in. Major League Baseball’s efforts to restrain the A’s from leaving their outdated stadium and failing market constitutes an effort to divide sales territories, which has been held by the FTC to be “almost always illegal.”
Major League Baseball has come out to defend its long standing privilege. Claiming a “contractual and economic right to carefully evaluate team relocation proposals for the benefit of all major clubs.” The MLB convincingly argues that Congress and the Courts have had opportunities to revoke this antitrust exemption, and their silence on the matter makes MLB practices legal.
San Jose lost its initial round of litigation, but the federal appeals court is supposed to come down with a decision this summer. The district court brought up the central theme of the failure of the judiciary or legislative branch to correct the antitrust exemption by claiming it was an issue for Congress, not the courts. If courts continue to be so unyielding in its adherence to precedent, it will fall on lawmakers to once again scale back the Supreme Courts gift of immunity from antitrust regulations to baseball.
By: Tiffany Sommadossi
Drones have captured the news. Increasingly, the impact of domestic surveillance drones on American privacy interests is being discussed and debated. The government’s use of unmanned aerial vehicles (UAVs) in the United States is particularly contentious because of possible Fourth Amendment implications and a growing public distrust of modern-day surveillance programs.
Unmanned aerial vehicles are sometimes remotely piloted but increasingly autonomous. They come in a variety of sizes, carry sophisticated technology, and can travel significant distances and loiter for long periods. High-power zoom lenses and tracking capabilities can be attached to drones today, but new attachments are constantly under development. The American Civil Liberties Union (ACLU) reports that future technology drones are likely to carry include see-through imaging and video analytics that “watch” people in order to rapidly recognize and respond to specific individuals, events, and objects.
There has only been one reported case of law enforcement using a surveillance drone to assist in an arrest of a suspect. The Department of Homeland Security, in agreement with local police, offered an unmanned predator drone to assist in a raid. A North Dakota District Court upheld the use of the drone in this case because there was “no improper use of [the] unmanned aerial vehicle” and it seems to have “had no bearing on [the] charges being contested.” As a result, the rancher—arrested after a 16-hour standoff with police for refusing to return cattle to his neighbor—was unsuccessful in getting his case dismissed based on the warrantless use of an unmanned surveillance aircraft in his arrest.
A number of bills have been introduced at the state and federal level which seek to mandate that law enforcement get a probable cause warrant before using a drone in an investigation. Legislation proposed after the Snowden NSA revelations also seeks to implement restrictions on what can be done with incidentally drone-collected information, how long drone-collected data may be kept, and how much access the government may have to third-party drone-collected information. Bills addressing how drone-collected data is retained and shared are likely responses to what has come to light over the past year about what happens to surveillance data collected by the NSA under Section 215 of the Patriot Act and Section 702 of the Foreign Intelligence Surveillance Act. Civil liberty and privacy groups, as well as legislators, seem eager to preemptively block drone-collected data from being gathered in databases subject to “back door searches,” as “foreign intelligence” gathered under Section 702 has been thus far.
The FAA Modernization and Reform Act of 2012 is a federal mandate requiring the Federal Aviation Administration (FAA) to develop a plan to safely integrate UAVs into U.S. airspace by 2015, but there is not a single enacted federal law that deals with the implementation of rules specifically designed to safeguard privacy interests. The ACLU reports that laws relevant to drone surveillance were enacted in thirteen states between 2013 and 2014. In other words, our state citizenship, rather than our national citizenship, dictates the degree to which the government may conduct and share surveillance information on us using drone technology.
Under existing jurisprudence the government may use UAVs for domestic surveillance purposes without a warrant or any judicial order, except in states with legislation requiring that law enforcement use surveillance drones only pursuant to a warrant. The Supreme Court has so far only considered three cases involving manned aircrafts. All three cases were decided in the 1980’s just after Smith v. Maryland, a landmark case that has been the Rosetta Stone for understanding what constitutes a “reasonable expectation of privacy” under the Fourth Amendment for search or surveillance purposes. In California v. Ciraolo, Dow Chemical v. United States, and Florida v. Riley, the Court held that the use of manned aircrafts to conduct warrantless surveillance was not a search under the Fourth Amendment because evidence gathering occurred in a “public, navigable airspace.” Yet some, like John Villasenor at Forbes, have opined that a careful read of the opinions would suggest that the Fourth Amendment may provide more protection in cases involving UAVs than is often assumed.
Besides the fact that those cases were decided over three decades ago and did not address unmanned aerial systems or the evolving technology that is being attached to them, the recent, unanimous holding in Riley v. California suggests it may be time to reconsider outdated notions of what privacy is and how much privacy protection we expect the Fourth Amendment to provide us. The government likes to assert that it can, without violating the Constitution, use UAVs without a warrant for domestic surveillance purposes, but there is a growing trend in statutory law to ban the warrantless use of drones and the courts may soon follow.
There is no doubt UAVs and the technology they can carry are cost-effective and efficient tools for local law enforcement and federal agencies to use in carrying out their missions. Soon, it could be commonplace for drones to assist with disaster relief, immigration control, environmental monitoring, and border protection. Although reports of UAVs interfering with airport airspace have convinced the FAA and others that comprehensive safety rules are needed to govern the private use of UAVs, the real battle is going to be over privacy rules. Federal rules requiring the government to use domestic surveillance drones responsibly are needed to ensure that as we modernize our government we do so without sacrificing our constitutional rights and privacy interests.
There is a handful of pending federal legislation related to drones. Notably, the Drone Aircraft Privacy and Transparency Act of 2013 seeks to amend the FAA Modernization and Reform Act of 2012 by requiring the government to make more transparent how it will use drones and the information collected by them. Such measures include requiring governmental entities to only use a drone system pursuant to a warrant, except in exigent circumstances described in the bill. The bill also makes approval of UAV use contingent on submission of a data collection statement that explains such things as the kind of information the system will collect and how it will be retained.
While pending federal legislation is an excellent sign that Congress is taking steps to address privacy concerns related to drone surveillance, the question of what to do until federal laws pass remains. The absence of drone privacy restrictions represents a gaping hole in American privacy protections, and also puts law enforcement offices in a predicament. A growing number of law enforcement offices, like the LAPD, are voluntarily refusing to integrate drone technology into its investigations because of public disapproval. The public has made clear that unless strict privacy rules are in place to govern surveillance drones, the benefits they can provide are not worth the significant privacy implications. Therefore, the lack of federal drone law focused on privacy is simultaneously threatening American privacy interests and preventing law enforcement from taking advantage of new technologies. As the Supreme Court’s interpretation of the Fourth Amendment slowly transforms and Congress remains suspicious of government surveillance programs, it will be interesting to see where the pendulum settles on what constitutes a reasonable expectation of privacy in the United States when it comes to government surveillance, particularly from the air.
By: Alex Baptiste
With lawyers, lobbyists, and politicos at every turn, DC is a city very accustomed to debates. An individual’s right to bear arms and the appropriate reach of the Second Amendment has always been a source of great contention, particularly in the last few years. Following the tragic Newtown shooting, President Obama called on Congress to implement stricter gun laws and amplify background checks necessary to obtain a permit. While all eyes have been on the nation’s capital in the hopes of stricter laws, DC may be moving in the opposite direction. Earlier this month, a federal court held that DC’s principal gun control law, which bans permit holders from carrying a concealed weapon in public places, to be an unconstitutional violation of the Second Amendment of the United States Constitution.
The case, Palmer v. District of Columbia, was brought by four residents of DC and the Second Amendment Foundation, Inc. against the city and DC Chief of Police Cathy Lanier. The plaintiffs allege that their Second Amendment rights were infringed upon by the city’s general refusal to issue permits allowing citizens of DC to carry their handguns in public.
While DC residents in possession of a permit were permitted to own handguns and keep them in their houses, carrying the weapon in public was prohibited without being issued a permit. However, DC was reluctant to issue the permits, citing case-specific reasons each time. Relying on District of Columbia v. Heller, a 2008 Supreme Court decision declaring that the Second Amendment extends a right to all individuals to keep firearms in their homes, Judge Frederick Scullin ordered the city to end its prohibition against carrying a concealed handgun in public.
A motion to stay the decision was filed by the city and Police Chief Lanier and was granted. The application of the new ruling will be stayed for 90 days to allow the police department to implement new procedures for incorporating this new requirement. The stay also allows the city time to prepare its appeal of the decision.
In a city that plays host to some of the country’s strictest gun laws, the ruling was nothing short of a surprise. While there is the fear that this ruling will open the door to universal carry laws, it also raises general safety concerns and opens old wounds given the city’s recent history with gun violence. Less than a year ago the city was stunned by a mass shooting at the Navy Yard that killed 13 people including the gunman. No, a handgun is not the same as a semi-automatic weapon, but with other incidents occurring around the country involving handguns carried in public, it is foreseeable that a ruling such as this would raise one’s concerns when walking down the street.
The Navy Yard shooting was not the first time DC was shocked by civilian gun-violence. In June 2009, an elderly white supremacist walked into the Holocaust Memorial Museum and opened fire, claiming the life of a security guard. In a city grounded in conflicting opinions, it is not a farfetched concern that violence may become an unwelcome source of conflict resolution.
Washington, DC is not your typical city. It does not have the bright lights of New York or the sunny beaches of San Diego. What it lacks in Disneyland attractions, however, it makes up for in history and political glamour. In 2012, over 18 million tourists made their way through the nation’s capitol, visiting museums, monuments, restaurants, participating in the annual Cherry Blossom festival, and enjoying the incredible attractions that this city has to offer. In 2013, it was estimated that nearly 647,000 people called DC home. With over a half million residents and an enormous volume of tourists traveling the streets, its easy to understand why allowing guns to be carried in public would put some on edge.
Outside of the number of residents and tourists, it cannot be ignored that Washington, DC is also home to members of Congress, Supreme Court Justices, high-ranking administrative officials, and the President of the United States. It is the political hub of our nation where Representatives and tourists walk past each other on the sidewalks and power players lunch daily amongst the fancy restaurants of K Street. It’s where those with the power to decide the direction of our nation roam free. This new law amplifies the pressure of the city’s police department, as well as the Capitol Hill Police, to be more alert than ever of any potential threats that may arise from a permit holding citizen freely exercising their right to carry a handgun in public.
Capitol Hill Police faced a major judgment call in October 2013 when a Connecticut woman rammed her car into the front gates of the White House. After the crash, the driver proceeded to speed through town towards the Capitol building, killing one police officer in the process and endangering the lives of unsuspecting pedestrians. The incident ultimately ended when the driver was killed after police opened fire. Capitol Hill police were criticized for their use of guns in trying to stop the woman. If this new ruling is upheld, it is not unfathomable to imagine a repeat situation where it is not just the Capitol Hill police acting but also DC citizens taking the law into their own hands and “helping” to end the danger.
With the motion to stay granted, DC’s laws remain the same – at least for the next 90 days. Alan Gura, counsel for the plaintiffs, feels that the ruling is “a fantastic improvement in public safety.” Whether this is the case remains to be seen and is sure to be debated – in typical DC fashion.
By: Daniel Guillermo Schneider
In November 2009 President Obama announced, as part of the administration’s “Pivot to Asia”, that the United States would be participating in the Trans-Pacific Partnership negotiations. The Administration believes the trade agreement to be an “ambitious, next-generation, Asia-Pacific trade agreement that reflects U.S. priorities and values.”
In his 2013 State of the Union address President Obama announced that the United States would be entering into negotiations with the European Union for a Transatlantic Trade and Investment Partnership. The Administration has since stated that it believes the agreement will be “an ambitious, comprehensive, and high-standard trade and investment agreement that offers significant benefits in terms of promoting U.S. international competitiveness, jobs, and growth.”
These large, regional, multilateral free trade agreements, as well as a number of small, bilateral free trade agreements are seen to many as a response to the lack of progress in the Doha Development Round negotiations of the World Trade Organization. The feeling is that the Doha talks are too ambitious and agreement is too difficult to achieve on such a large scale, and that smaller bilateral or regional multilateral trade agreements would be easier to reach.
However, while consensus is easier to achieve in smaller bilateral and regional multilateral free trade agreements, one major hurdle remains for the United States to effectively agree to any free trade agreement: the United States Congress.
Historically, the power to regulate trade with foreign nations solely resided with Congress. Article 1, Section 8 of the Constitution states that Congress has the power “to regulate commerce with foreign nations.” Negotiating a free trade agreement with several other countries is quite difficult when the United States’ trading partners agree to something we propose, but Congress then refuses to pass or chooses to amend. This reduces the bargaining power of the Executive Branch as negotiating partners tend to be weary and reluctant to agree to something when they are doubtful that the United States Congress will even agree to it.
Some would say that the Framers of the Constitution intended all trade agreements to go through Congress as a check on the power of the president. However, in 1974 Congress granted the president Trade Promotion Authority, or “fast track authority,” to negotiate trade deals as part of the Trade Act of 1974. This authority expired in 1994 and was renewed in 2002 as part of the Trade Act of 2002, which expired in 2007.
Essentially, Trade Promotion Authority gives the president an outline of the objectives and priorities of Congress in regards to trade agreements, and allows the president to present any trade agreements to Congress for a yes or no vote without the opportunity for filibusters or amendments.
Trade Promotion Authority has been used by both Republicans and Democrats and is generally endorsed by supporters of free trade. According to its opponents, Trade Promotion Authority is a nifty trick for skirting Congress. However, this power was given by Congress to the president and still requires Congress to vote on the final agreement before it becomes US law.
As the last Trade Promotion Authority expired in 2007, President Obama has recently been seeking a renewal in order to gain greater bargaining power in negotiations for the Trans-Pacific Partnership and the Trans-Atlantic Partnership. Surprisingly, Obama’s main opposition on this renewal is not coming from the GOP, but from his own party as well as the libertarian wing of the Republican Party. The major concerns from the Democratic Party appear to be less with Trade Promotion Authority specifically and more with free trade agreements generally.
Recently, negotiations for the Trans-Pacific Partnership have stalled. It is believed to be because negotiators want to wait until after the US midterm congressional elections to relieve uncertainty about the Obama administration’s bargaining power and the likelihood of Trade Promotion Authority being renewed.
If an agreement is reached, these two trade agreements combined would affect the majority of the world’s GDP. The Pacific partnership would comprise 40%, while the Atlantic partnership would comprise nearly 50%.
The benefit of these agreements, supporters claim, is growth of the American economy through job creation due to the increase in markets for the exportation of American goods and services. Some opponents, on the other hand, claim that these trade agreements will increase economic inequality in the United States by lowering wages, while increase the power of corporations around the world.
As negotiations for the Trans-Pacific Partnership have begun to stall and the Trans-Atlantic Trade and Investment Partnership negotiations are still in their early stages, it appears that any agreement may hinge on the results of the midterm elections and whether the Obama administration can convince the new Congress to renew Trade Promotion Authority once again.
By: Cynthia Anderson
By M.O. Stevens (Own work) or CC BY 3.0 (http://creativecommons.org/licenses/by/3.0)], via Wikimedia Commons.
From cell phone searches to databases filled with internet-based communications, citizens’ privacy rights have been a hot topic in the United States recently. This has led to significant discussion about the government’s ability to obtain information without a warrant for use in ongoing criminal investigations. Recently, Supreme Court decisions in Riley v. California and United States v. Wurie, have largely been viewed as a win for privacy advocates. The Court in both cases held that police cannot conduct a warrantless search incident to arrest to obtain information contained on a cellphone. A lawyer in the Riley case predicts that Riley and Wurie will act as a catalyst for other potential Fourth Amendment issues relating to technology to make their way to the Supreme Court. I agree, and historic cell site location information (CSLI) should be one of the first topics to find its way to there. Obtained under the “specific and articulable facts” standard of 18 U.S.C. section 2703(d), historic CSLI has received increasing amounts of attention for allowing data to be collected for less than the probable cause standard.
Much of the case law related to historic CSLI has remained at the District Court level. Challenges have been raised as to both the applicability of the statute to historic CSLI and the constitutionality of the statute under the Fourth Amendment. The arguments against finding that historic CSLI can be obtained under section 2703 are fairly weak. They largely center on an attempt to classify a cell phone as a tracking device under section 3117(b), as in In re Application Authorizing Disclosure of Historic Cell Site. However, most opinions seem to recognize that this argument is flawed and go on to provide a constitutional analysis. It seems likely that any future Supreme Court decision would follow suit and resolve the debate on a constitutional rather than statutory basis.
Opinions that have concluded that obtaining historic CSLI is a search under the Fourth Amendment have typically done so based on language in newer Supreme Court cases such as United States v. Jones. Most recently, the Eleventh Circuit held that section 2703(d) as it applies to historical CSLI is unconstitutional because it violates “the subscriber’s reasonable expectation of privacy.” The opinion hinges its support on the Supreme Court cases Jones and Katz v. United States. In Jones, the government installed a GPS tracking device on the defendant’s car after its search warrant had already expired, and in a location not covered by the warrant. The opinion held that the Fourth Amendment had been violated because the government trespassed on the defendant’s private property when it installed the tracking device. Although the search was found to be unconstitutional without regard to the defendant’s reasonable expectation of privacy, the opinion did acknowledge that the Katz test would still apply in situations where a physical trespass had not occurred. The Eleventh Circuit concludes that historic CSLI must be obtained through a warrant based on two portions of the Jones opinion. First, an admission by the majority that the Katz expectation of privacy test still applies; and second, the concurring opinions’ assertions that GPS location tracking violates a reasonable expectation of privacy because it can show a person’s “visit to a gynecologist, a psychiatrist, a bookie, or a priest[.]” It further uses prior analysis by the Third Circuit to conclude that older Supreme Court decisions about citizens’ reasonable expectations of privacy, such as United States v. Miller and Smith v. Maryland, do not apply. Smith and Miller held that individuals have no reasonable expectation of privacy in information voluntarily given to a third party, such as phone numbers dialed or information facilitating bank transactions. However, the Third and Eleventh Circuits distinguished historic CSLI from other information processed by third party companies by asserting that consumers are unlikely to be “aware that their cell phone providers collect and store historical location information.” Thus, if consumers are unaware that they have shared the information, they cannot have done so voluntarily.
Interestingly, cases that do not find that historic CSLI violates a reasonable expectation of privacy tend to simply emphasize that the information is obtained from a third party. The Fifth Circuit, for instance, held that the “specific and articulate facts” standard does not violate the Fourth amendment as used to obtain historic CSLI. In doing so, it found that “cell site information is clearly a business record” under Smith and Miller, and it may therefore be obtained using a lower standard than that required for a warrant. It further rejects that cell phone users do not understand that service providers use and retain information that can identify their location. In essence, the split created by the Fifth and Eleventh Circuits is based entirely on different applications of the same case law.
Although many privacy advocates are likely to hail the Eleventh Circuit opinion, there are a surprising number of articles that support the conclusion that historic CSLI does not require a warrant under existing Supreme Court precedent. Arguments as to what the Fourth Amendment should protect aside, I agree that current jurisprudence does not support the conclusion that historic CSLI constitutes a search under the Fourth Amendment. First, the data is almost unarguably derived from information voluntarily given to a third party under Smith and Miller. The assertion that consumers do not realize the information is gathered ignores not only the technological know-how that is prevalent in most generations, but the large number of procedural crime shows that reference its use in criminal investigations. Second, CSLI does not provide pinpoint location information. The Third and Eleventh Circuits seem to accept that when CSLI locates a person to within 100-meters, it tells law enforcement exactly what building a person was in. One hundred meters is nearly the length of a football field. For the majority of people in the country who largely live in towns or cities, that amount of detail only shows what neighborhood a person was in. Finally, despite the recent Supreme Court dicta expressing concern about GPS data violating privacy by showing things like whether a person goes to strip clubs or attends church, this kind of information is already available to the government under the lower subpoena standard by obtaining credit card and bank transaction records. Banking transactions certainly provide a more complete picture of a person’s activities and preferences than what scattered information could be gathered by pulling historic location information generated at the times that they made or received phone calls.
Even though Supreme Court precedent does not directly support the Eleventh Circuit’s analysis, it seems likely that the Supreme Court will also find a way to conclude that section 2703 is unconstitutional as applied to historic CSLI. The Court has recently trended toward increasing privacy protections when it comes to technology, as evidenced by Riley, Wurie, and the concurring opinions in Jones. No matter the ultimate conclusion, given the far-reaching implications for criminal investigations, the standard required for investigators to receive historic cell site location information needs to be addressed by the Supreme Court in the near future.