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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 EMERGING JUDICIAL PERSPECTIVES ON WARRANTLESS SEARCHES OF CELL SITE LOCATION INFORMATION 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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