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6 Nw. Interdisc. L. Rev. 57 (2013)
Ill-Suited to the Digital Age: Problems with Emerging Judicial Perspectives on Warrantless Searches of Cell Site Location Information

handle is hein.journals/nwilr6 and id is 65 raw text is: ILL-SUITED TO THE DIGITAL AGE: PROBLEMS WITH
Christopher D. Browne*
For the average user, a cell phone represents a form of
communications technology.  For a rapidly increasing
number of law enforcement officials, a cell phone functions
as a tracking device, used to monitor the location of persons
of interest on a minute-by-minute basis.   This new
surveillance capability has evolved largely without public
notice, and unfortunately without judicial oversight in many
cases. A plurality among Federal and State courts that have
addressed the practice of tracking cell phone users through
the signal of their phones has concluded that the Fourth
Amendment does not require a search warrant for this type
of surveillance. Those courts have reasoned that because no
expectation of privacy exists in an individual's public
location, no warrant is required to track that information
through surveillance technology. This article critiques that
plurality view.  The history of the Fourth Amendment's
relationship to surveillance technology suggests that the
Supreme Court did not intend to permit widespread
surveillance of American citizens without any judicial
oversight.  Furthermore, the plurality view draws an
unmanageable distinction between monitoring public and
private locations; at the time law enforcement officers use
surveillance technology to determine a citizen 's location,
they have no way to know if it will be in a public or private
area. Consequently, the plurality view incentivizes, rather
than deters, surveillance that might encroach on historically
private locations such as the home.  Finally, pervasive
surveillance of American citizens has a chilling effect on the
exercise of constitutional liberties.
* Adjunct Professor at Northeastern University School of Law, and judicial clerk
with the Massachusetts Superior Court. Formerly judicial clerk with the
Massachusetts Appeals Court.

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