Last week, the U.S. Court of Appeals for the Fifth Circuit held that the U.S. Constitution does not provide any protection against government access to cell phone location records—records that reveal the location and movement of every person with a cell phone.1 This latest decision in the developing law of cell phone location privacy takes a dangerous path that is insensitive to the new technological reality and that should not be followed by New York courts deciding the issue under the state Constitution.
At issue in the Fifth Circuit decision was the government's attempt to access 60 days of historical cell phone location records without a warrant. Every cell phone automatically generates these types of location records whenever they are on, in the form of signal and registration information with nearby cell towers. The government presumably wanted to access this information to map the user's movement over that 60-day period.
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