Whose Line Is It Anyway? Probable Cause and Historical Cell Site Data

This Note argues that the “specific and articulable facts” standard does not accord with the intent of the drafters of the Fourth Amendment to protect individuals’ reasonable expectation of privacy. Although allowing the government access to historical cell site data to use as evidence in a criminal proceeding aids law enforcement, legislators must recognize the risks that flow from allowing the government to retrieve cell phone location information without probable cause. At least one study suggests that the public is losing confidence in their ability to control personal information, ultimately creating public discomfort with and suspicion of government surveillance. If Congress declines to amend the statute, the idea of a “big brother” government watching its people may disturb the sensibilities of the public. In 2012, cell phone providers responded to over 1.1 million federal, state, and local law enforcement requests for cell phone records, with the public largely remaining unaware of the volume of these requests. Part I presents the Supreme Court’s Fourth Amendment jurisprudence regarding this issue, while Part II highlights the analytical problems the circuit courts have faced in attempting to reconcile Supreme Court decisions in order to decide historical cell site data cases. Finally, Part III presents potential resolutions of the proper standard for historical cell site data retrieval and urges Congress to reexamine the SCA’s “specific and articulable facts” standard to better comport with society’s privacy expectations