In this case, as in others, prosecutors argue that the Supreme Court has long viewed information shared by a consumer as fair game without a warrant. Even before the Stored Communications law was enacted, the high court ruled that you lose your Fourth Amendment right to privacy when you share information with a third party, like the phone company.
Fourth Amendment scholar Orin Kerr contends that the idea of tracking someone’s movements in public is not new. The police, for instance, tail a suspect, or check on his alibi. Only when they search the suspect’s home or person do they have to get a court-approved warrant.
Kerr contends that the cell-cite location records at issue in this case “are basically the network equivalent of public observation that traditionally would not be protected” by a warrant requirement.