In a departure from the recent position staked out by the New Jersey Supreme Court, the Fifth Circuit ruled yesterday in In Re: Application Of The United States Of America For Historical Cell Site Data, Case No. 11-20884, that a warrant is not required for the government to obtain cell site information, which effectively allows the government to identify a person’s location when they make a call with their mobile phone.

In that case, the government filed applications under the Stored Communications Act (“SCA”) (18 U.S.C. §§ 2701-2712) for an order compelling disclosure of 60 days’ worth of historical cell site data for three cell phones. The SCA permits the government to obtain a court order compelling disclosure of information from cell phone service providers if it can show “specific and articulable facts” that the information is “relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). Courts have previously held that “specific and articulable facts” is a lower standard than probable cause. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to the Gov’t, 620 F.3d 304, 315 (3d Cir. 2010).

A magistrate judge denied the government’s request for cell site data, ruling that disclosure of this type of information without a warrant violates the Fourth Amendment. The district court agreed with the magistrate judge that the Fourth Amendment only permits disclosure of such information “by a warrant issued on probable cause.”

The government appealed to the Fifth Circuit, which yesterday reversed. The Fifth Circuit ruled that the Fourth Amendment is not violated when the government obtains historical cell site data for specific phones without probable cause. The court focused on who collects the information – in this case, the cell phone service providers collect the information for their own purposes. Although the ACLU argued that cell site data is similar to a “tracking device,” the Fifth Circuit rejected this construct because the government is not collecting the data, nor is it requesting the service providers to collect it or retain it. The court argued the government is instead seeking access to existing “business records.” The Fifth Circuit also gave the ACLU’s privacy arguments short shrift, noting that an individual who “knowingly exposes his activities to third parties . . . surrenders Fourth Amendment protections . . . .” Viewing the issue through that lens, the court held that cell phone users do not have a reasonable expectation of privacy regarding their location when making a cell phone call because they have voluntarily transmitted that information to the cell phone service provider, knowing that the companies retain records of the information.

The dissent argued that the panel should not have reached the issue of whether a warrant is required to obtain cell site data because the statute granted the district court with discretion to require a warrant. According to the dissent, the lower courts properly exercised that discretion because cell site data is at least arguably subject to Fourth Amendment protections. This view was expressly rejected by the majority, which ruled that district courts have no discretion to require a warrant, and must grant an application seeking cell site data if the government meets the “specific and articulable facts” standard.

The Fifth Circuit’s decision contrasts with the recent decision by the New Jersey Supreme Court earlier this month in State v. Earls, in which the court held that consumers have a “constitutional right to privacy in cell-phone location information” and thus law enforcement is required to obtain a warrant based upon probable cause before they can access this information (even though New Jersey had a statute similar to the SCA which did not require a warrant). Although the New Jersey court adopted a very different view of the privacy implications of allowing the government to access cell phone location information, the New Jersey court based its ruling on the state constitution and state case law holding that an individual does not necessarily relinquish his privacy rights by disclosing it to third parties. The Earls court expressly recognized that a warrant might not be required under federal law. From a practical perspective, the two decisions illustrate what could prove to be a frustrating distinction for law enforcement, where state officials will need to establish probable cause to obtain cell phone records that their federal brethren can obtain based on the lesser “specific and articulable facts” standard.

What remains to be seen is whether other circuits will follow the Fifth Circuit’s lead. In 2010, the Third Circuit charted a slightly different course in In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to the Gov’t, 620 F.3d 304 (3d Cir. 2010), suggesting that district courts have the discretion to require the government to obtain a warrant to access cell site data. The Third Circuit also conveyed greater skepticism to the argument that consumers “voluntarily” provide their cell phone providers with location information. This indicates that a circuit split may be on the horizon, setting up the opportunity for the Supreme Court to weigh in on this issue.