Third Circuit Punts On Important Geolocation Privacy Case

In deciding that a judge may - but is not required - to ask law enforcement to show probable cause for a warrant before asking a telecommunications company to turn over historical location data on its customers, the Third Circuit Court of Appeals has in effect punted on a very important geolocation privacy case. The primary issues in the case involved statutory interpretation of a complicated section of the outdated Stored Communications Act (the "Act"). The Obama administration argued that probable cause was not required under the Act to acquire historical location data - even though "historical data"could literally be seconds old. Rather, they argued, all that was required was that a much lower standard, that the information was "relevant and material to an ongoing investigation". Opponents argued that under the Act a warrant was always required.

This case has a number of important implications broader than the Stored Communications Act itself. It is part of a much larger discussion of what is a reasonable expectation of privacy in the United States from a location standpoint. The Third Circuit Court's inability to make a firm decision on the matter highlights both the ambiguity within the Act itself as well as the complexity of the issues involved. Unfortunately, its decision provides little help to lower court judges, law enforcement or the growing number of companies that are collecting this information on a regular basis.