Cell-Site Simulators and the 4th Amendment
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Prof. Orin Kerr wrote about the Maryland Court of Special Appeals’ decision in State v. Andrews yesterday at the Volokh Conspiracy. The case deals with cell-site simulators used by law enforcement to track suspects’ cell phones, and how this new technology interacts with the requirements of the 4th Amendment.
I like Orin’s categorization of four possibilities for how courts could determine when the use of a cell-site simulator is a search. As explained in my recent Federalist Society Review article, I vote that its use is not a search, and that no warrant is required as a matter of constitutional law.
The Andrews court’s opinion is flawed in two major regards. First, it fails to meaningfully examine the level of connectivity that modern smartphones have, and the impact of the third party rule on whether the 4th Amendment protects this data. Most phones now connect in multiple manners, and transmit large amounts of connectivity data. The court is now stating that there is a general expectation of privacy in all of this connectivity data, without really understanding the volume of connectivity in typical cell phone communication.
Second, the court places too much reliance on the 4th Circuit’s decision in U.S. v. Graham. In my opinion, Graham is an outlier. All other circuits that have examined this issue (5th, 6th, and 11th) have rejected the warrant requirement. There is a good chance that the en banc review of Graham will reach the same result. The court paid little attention to the significant body of contrary law that is currently out there. If the court was determined to require a warrant, it would have been safer to base its decision on the Maryland constitution rather than federal constitutional law.
Law Office of John Cline
John Cline graduated magna cum laude from the University of Texas Law School, where he was editor-in-chief of the Texas Law Review. After graduation, he served as a law clerk to the Honorable Homer Thornberry of the United States Court of Appeals for the Fifth Circuit. John began practice at Williams & Connolly in Washington, D.C., where he became a partner in 1994. Following a move to New Mexico, John became a shareholder at Freedman Boyd Hollander Goldberg & Cline in 1997. He joined Jones Day as a partner in San Francisco in 2004 and left in 2010 to form the Law Office of John D. Cline.
John is a Fellow of the American College of Trial Lawyers. He has been included as a Northern California Superlawyer since 2005; he has been listed in Best Lawyers in America for many years; he has appeared on a variety of other "best lawyer" lists; and he has an AV rating from Martindale-Hubbell.
Adjunct Professor, George Washington University
Howard W. Cox is a former federal prosecutor, criminal investigator and Senior Intelligence Service officer. After almost 40 years of federal service, he retired as the Assistant Inspector General for Investigations of the Central Intelligence Agency. In this capacity, Mr. Cox supervised criminal, civil and administrative investigations conducted by the Office of Inspector General (OIG). Prior to his employment with the CIA, Mr. Cox was the Assistant Deputy Chief of the Computer Crime and Intellectual Property Section of the Department of Justice, where he was responsible for supervising criminal prosecutions of federal hacking and identity theft cases. While at the Department of Justice, Mr. Cox received the Attorney General’s Distinguished Service Award.
Prior to his service with the Department of Justice, Mr. Cox served as a manager, attorney and criminal investigator at OIG offices at the US Postal Service, the Department of Defense, and the General Services Administration. He also served as Staff Counsel for the US Senate Permanent Subcommittee on Investigations. Prior to his federal civilian service, Mr. Cox was also a Captain and trial attorney in the US Army’s Judge Advocate General’s Corps. Mr. Cox also served as Law Secretary to the Hon. Sherwin D. Lester, NJ Superior Court.
Mr. Cox is an adjunct professor at George Washington University, where he teaches graduate level courses in computer forensics. He is also an instructor with the Graduate School USA, and the Federal Law Enforcement Training Center, where he teaches courses related to procurement fraud and electronic search and seizure. Mr. Cox received his AB degree from Seton Hall University, South Orange, NJ. He received his law degree from Georgetown University Law Center, Washington, DC.