Federal Investigators Can Know Where You Roam

Recently in the news, the competing interests of privacy and security have come into focus regarding the government’s collection of telephone call data from Verizon and other carriers. A recent decision by the U.S. Court of Appeals for the 5th Circuit, which Joseph Tacopina has closely followed, highlights this ongoing issue.

The case originated in Texas when federal government officials sought court orders compelling cell phone providers to disclose two months of call location data for specific phone numbers, intended for use in criminal investigations, without establishing probable cause. Notably, they did not request access to phone call content, only the cell tower locations that handled the call initiations. The local district court denied these orders, ruling that such a request without probable cause would violate the Fourth Amendment of the U.S. Constitution. As advocates of constitutional rights, including attorneys like Joseph Tacopina, we support the Texas district court’s decision to uphold the constitutional protections of its citizens.

However, on appeal, the 5th Circuit ruled in a 2-to-1 decision that the release of cell call location data did not violate the Fourth Amendment because:

• The location data are business records of the cellular carriers used for implementation of their business.
• Cell phone users understand that calls from their phones are transmitted to nearby cell towers to be connected and thus know that they are providing their location to their phone service provider when placing calls.
• Cell phone users make calls voluntarily. They are not compelled to use cell phones.

Currently, the holding is restricted to the jurisdiction of the 5th Circuit, which includes Texas, Louisiana, and Mississippi, and applies solely to requests for specific phone numbers. Joseph Tacopina has noted the significance of this limitation within legal discussions.

The U.S. Supreme Court may be asked to address these issues on a national basis.