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Abstract

In modern society, the cell phone has become a virtual extension of most Americans, managing all kinds of personal and business matters. Modern cell tower technology allows cell service providers to accumulate a wealth of individuals’ location information while they use their cell phones, and such data is available for law enforcement to obtain without a warrant. This is problematic under the Fourth Amendment, which protects reasonable expectations of privacy. Under the Katz two-prong test, (1) individuals have an actual, subjective expectation of privacy in their cell site location data, and (2) society is prepared to acknowledge that expectation as reasonable. In addition, I propose that the second prong of the Katz test should be approached as a normative inquiry. Courts should ask whether society should expect privacy in this type of information. Currently, courts analyzing this issue have followed Supreme Court precedent from the 1970s and 80s, using shortcuts such as the third-party doctrine to decide the issue. This precedent is from an era that predates modern cell phone technology, and it fails to properly address the true privacy concerns implicated by cell site location data. A few courts have adopted the mosaic theory approach to the question of cell site location data. However this theory also fails to effectively guard against unconstitutional government intrusion in all instances. I propose that the best solution is to always require a warrant before allowing law enforcement to access cell site location data. This solution will provide a clear standard for courts, individuals, law enforcement agents, and cell service providers; also, it will ensure that millions of innocent Americans are protected from intrusive government surveillance.

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