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4th Cir. to Rehear Cell-Site Surveillance Tower Case

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By Jonathan R. Tung, Esq. on November 03, 2015 5:57 AM

The Fourth Circuit agreed to rehear the cell-site tower case United States v. Graham, which further probes the questions of the Fourth Amendment's application to an increasingly mobile, digital world.

The grant of the U.S. Government's petition effectively means that there will be some delay in Graham reaching the country's highest court -- thereby delaying a much sought final word from SCOTUS.

Fourth Amendment Digitized

It has been little more than a year since SCOTUS ruled unanimously (how often does that happen?) in Riley v. California that police may not search the cell phones of criminal suspects upon an arrest without a search warrant. The decision was hailed by many as a major victory for civil liberties in this country.

There have been a tide of digital privacy cases in recent years -- no surprise. With the granting of the government's petition, the court will review whether cell-site records are protected under Graham under the Mosaic Theory first propounded under a case called United States v. Maynard.

"An Extended Period of Time"

The Graham case notably asks whether individual government peeks into your digital footprints (which do not amount to a search) can equal a search when taken into multitudes. Think of it this way: one dot tells only about a single point in time. But hundreds of dots in a day essentially outline's someone's life.

The Fourth Circuit relied on the D.C. Circuit finding in U.S. v. Maynard (turned U.S. v. Jones when it finally reached the Supreme Court). Under this case, a reasonable expectation of privacy has been violated when the government compels records that reveal the movements of an individual over -- wait for it -- "an extended period of time."

Once this vague period of time has been crossed, a search has taken place under the so-called Maynard's "Mosaic Theory." Jones applies rather conveniently because if GPS tracking amounts to a search, well then: a personal GPS tracker in the form of your phone should also warrant 4th Amendment protections too ... right?

The Good Ol' Days

The Fourth Amendment used to be much easier. As relevant information becomes more digitized, so too does the importance of what constitutes "a search" within the context of the Fourth Amendment. And changes in technology almost assuredly mean that exceptions will spring up just as soon as case law gives it the chance to. For those waiting for clarity, it'll be a long road ahead.

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