Last year, I blogged extensively about the pending Fifth Circuit case on Fourth Amendment protection for cell-site data. Readers may recall that this is the case in which a Magistrate Judge denied an application for a court order to obtain cell-site data on the ground that he thought the Fourth Amendment would be violated by the order’s execution. DOJ appealed on Fourth Amendment grounds arguing that cell-site data is unprotected by the Fourth Amendment; various amici argued that the Magistrate Judge was correct and that cell-site data is protected; and I wrote an amicus brief raising procedural objections and arguing that the issue was not ripe for adjudication and therefore the merits couldn’t be reached.
Today the Fifth Circuit issued its opinion, which is available here: In Re: Application of the United States of America for Historical Cell Site Data. This is a long post, so here’s the bottom line: The majority opinion reached the merits and gave the government a huge win. But the opinion addressed and resolved a lot of issues, so in this long post I want to run through all the important legal questions answered by the Fifth Circuit’s opinion. Following the order in the opinion, I’ll start with the court’s procedural holdings and then turn to the merits. I’ll then offer my own analysis, both of the impact of the court’s opinion and of the persuasiveness of its holdings.
Also, given the number and complexity of the issues, I’m going to stick to addressing the majority opinion by Judge Clement. Judge Dennis dissented primarily on statutory grounds, but I won’t focus on that dissent here.
I. The Procedural Holdings
Here are the holdings of the majority opinion:
1) The dispute is ripe because it is limited only to a pure question of law, specifically, […]