 Can authorities rifle through the location histories of thousands of innocent people to catch one guilty person? One federal judge in Mississippi recently gave a decisive answer: No. U.S. District Judge Carlton Reeves of the Southern District of Mississippi had no qualms about drawing the line at the exact edge of the U.S. Constitution. This case concerned “tower dumps,” in which authorities require a cellular provider to produce information concerning every device that connected to specified cell towers during a defined period. On Aug. 5, Judge Reeves held that such “tower dump” warrants are per se unconstitutional. Ryan T. Fenn and Lee M. Cortes, Jr. of Arnold & Porter report in Enforcement Edge that Judge Reeves based his ruling on the conclusion that such searches intrinsically violate the Fourth Amendment because, by their nature, tower dumps cannot be particularized. It is, therefore, impossible to establish probable cause as required by the Fourth Amendment with respect to each device captured. Judge Reeves acknowledged that tower dump warrants can be “uniquely effective” in catching criminals by placing them at the scene of a crime. His concern was that such a search, however, also sweeps in information belonging to thousands of people who have no connection to the investigation. In his opinion, Judge Reeves wrote that the government cannot obtain “an entire haystack because it may contain a needle.” Judge Reeves extended the logic of the Supreme Court’s 2018 Carpenter ruling, which recognized a privacy interest in cell-site location information, but declined to address tower dumps. He also noted that the recent Supreme Court Chatrie decision held that geofence warrants are searches, regardless of the time limits placed on a warrant. The logic of these cases extends to tower dumps, which can identify people inside their homes, offices, and houses of worship – data Judge Reeves found to be “intimate and deeply revealing.” Will this federal judge’s ruling in Mississippi upend the common practice of scraping mass data from cell-phone towers? Will it set a precedent that will quickly bring other forms of mass surveillance – such as federal agencies’ purchases of Americans’ digital lives from data brokers and the increasingly ubiquitous network of public and private cameras to which law enforcement has easy access – under constitutional scrutiny? Short answer: Not likely. But it is still a very positive development. As Fenn and Cortes write, “this is one decision from a district judge – it binds no other court, not even others in the Southern District of Mississippi.” True. We believe, however, that Judge Reeves’s ruling is significant. It is likely to inspire more such cases and rulings – coming down on both sides of the issue – that will force the Supreme Court to provide a more detailed and comprehensive answer on the constitutionality of all forms of geolocation tracking. Stay tuned. Comments are closed.
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