[rarw]

I love a good old does-the-4th-Amendment-cover-cell-phone-data debate. However, there's a lot of misinformation going on about the current state of ECPA (the Electronic Communications Privacy Act), what it covers and what it does not. Some brief points.

(1) A number of courts have outright rejected the argument that location information is covered by the pen register act simply because its shared with a third party service. This section of ECPA followed in the wake of Smith which found that since there was no expectation of privacy in your phone number (beacause after all it was listed in the phone book) there was no violation if your number, and the number you were calling were recorded. Where you are at any given moment involves a very different set of data. Many courts recognize this.

(2) In many cases the basic reasonable expectation of privacy analysis does not apply in these data oriented situations. ECPA's application is further complicated by the fact that how information is treated depends on whether it is retrieved from storage or captured while it is being transmitted. The 7th circuit recently addressed this issue and determined that it should not matter how you get someones digital information. However, that is not the law all over the country. In many cases whether this "dump" was received as a result of a file containing location data or recorded live as it came off the tower matters.

For those of you more interested on this subject I wrote a paper on this back when I was in law school http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1988546 and would be happy to discuss further