Giving up the Ghost in the Machine: Emergency Cellphone Tracking Under 18 U.S.C. § 2702(c)(4) Is a Search

In the post-September 11th world, our judiciary has been forced to confront the truth that “all free peoples have had to balance the demands of liberty with the demands of security.” This tension is not new, and in the past, “we Americans have been able to plant our flag well down the spectrum towards liberty.” Recently, however, the interception of electronic communications and other data by local, state, and federal law-enforcement authorities has emerged as a central point in the debate. While many Americans might be willing to endure some degree of intrusion under the threat of national terrorism, the situations that implicate our most deeply held constitutional protections are rarely so clear or dramatic. Should we allow police to gather location data from a suspected robber’s cellphone as evidence without a search warrant? What about to arrest him before he strikes again? What if not a robber but a drug dealer? These examples may seem innocuous, even obvious to some. But what happens when police suspect you, and what harm will you suffer when it turns out they were wrong? These questions make up some of the murkiest depths of American Fourth Amendment jurisprudence, and confusion persists over when and within what constraints law enforcement can track your cellphone’s location in real time. Both statutory and constitutional law governs law-enforcement acquisition of information regarding cellphone service subscribers, including cellphone location data. The Stored Communications Act (“SCA,” “the Act”), specifically 18 U.S.C. § 2702(a)(3), restricts the disclosure of cellphone data to the government by cellular service providers, while § 2702(c)(4) (“the emergency provision”) provides an exception for certain emergency situations. Other sections provide civil remedies for “nonconstitutional violations” of the Act