Cyber Crime Review
Cyber Crime Review

November 2023


Jones II: This time, the government seeks to use cell site location information

Cyber CrimesCyber Crimes

Remember United States v. Jones, the ground-breaking decision from the Supreme Court in January? For those of you who haven’t heard, it’s the case where the justices held that the installation and use of GPS is a Fourth Amendment search and requires a warrant (read more here). The case is now being retried, and the government is seeking to use cell site location information (CSLI) to prove the same facts as the GPS data.

Poor Antoine Jones. This guy just can’t catch a break. Of course, his lawyer has filed a motion to suppress the CSLI just like the GPS data. “In this case, the government seeks to do with cell site data what it cannot do with the suppressed GPS data,” argues Jones in the new filing.

During the government’s investigation, they placed the GPS device to track Jones and obtained information from his phone company, the latter under a 2703(d) Order. A total of four months of CSLI was obtained, significantly more than the 28 days he was tracked with GPS (an amount of time the concurring justices found significant). However, only the GPS data was used at trial so the appellate courts were never able to directly address the CSLI.

Despite not having the issue before them, that didn’t stop five justices from discussing the larger issue – as Sotmayor put it – “whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.”

Courts began to deal with CSLI about five years ago, and as they were with GPS data, the courts are fractured. A distinction, however, is that some courts have deemed a 2703(d) order under the Stored Communications Act sufficient for CSLI (see, e.g., 620 F.3d 304 (3rd Cir. 2010)), but others require a warrant (see, e.g., 809 F. Supp. 2d 113 (E.D.N.Y. 2011)).

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