The Stored Communications Act (SCA) allows the government to obtain court orders-without a search warrant-to require cell phone service providers
The Stored Communications Act (SCA) allows the government to obtain court orders-without a search warrant-to require cell phone service providers to produce their subscribers' historical cell-site location information, which include the date, time called, and number for each call as well as the location of the phone when the call was made. Courts have reached different conclusions as to whether a search warrant is needed to obtain such data. The U.S. Court of Appeals for the Fifth Circuit held that no warrant is required, reasoning that the Fourth Amendment protects individuals from "governmental intrusion," but it does not protect individuals from "other people." When individuals "knowingly expose" activities to third parties, Fourth Amendment protections are surrendered; and, if the government then needs to conduct a criminal investigation, it can find the third parties and inspect their records without first obtaining a warrant. Because cell phone users understand that their phones must send signals to a cell tower so their calls can go through, a cell phone user "voluntarily conveys his cell site data each time he makes a call." In a decision based on the broader privacy rights guaranteed by the New Jersey Constitution, the New Jersey Supreme Court held that police must obtain a search warrant to collect location data from an individual's cell phone service provider.210 The court rejected the argument that individuals lose their right to privacy "simply because they have to give information to a third party provider." Cell phone location data can provide an "intimate picture of one's daily life," thereby blurring "the historical distinction between public and private places." Further, using cell phones has become "indispensable." Because individuals have a reasonable expectation of privacy in the location of their cell phones under the New Jersey Constitution, police in New Jersey may not access cell-phone location data without first obtaining a search warrant. Which argument do you find more persuasive, the reasoning of the Fifth Circuit or the New Jersey Supreme Court?
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