North Carolina Law Review

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All Things in Aggregation: Reassessing the Fourth Amendment’s Third-Party Doctrine and the Fourth Circuit’s Approach to Cell Site Location Information in United States V. Graham

May 11, 2018

96 N.C. L. Rev. 1203 (2018) 


The clash between long-standing legal doctrines and rapidly-evolving technology lies at the heart of United States v. Graham, a recent Fourth Circuit case that deliberated the nature and extent of the Fourth Amendment’s protection of cell site location information (“CSLI”). In Graham, CSLI collected from cell phone providers without a warrant was used to determine and track the defendants’ locations during a string of robberies. The Graham court followed other recent circuit court decisions by holding that law enforcement did not need to acquire a warrant for this information under the third-party doctrine, a principle stating that the Fourth Amendment does not protect information individuals “voluntarily turn[] over to third parties.”


The Graham court’s decision raised important questions about the conflict between privacy and a number of Fourth Amendment doctrines, including the third-party doctrine, in today’s technology-driven world. The court dismissed the argument that aggregation of CSLI data could raise serious privacy concerns. It also declined to recognize CSLI as constitutionally protected “content” of communications rather than unprotected “non-content,” essentially stripping all non-content third-party data—no matter how sensitive or revealing in the aggregate—of constitutional protections. The lack of a boundary in this area is troublesome because a properly considered limit could resolve some of the significant fears and criticisms surrounding the third-party doctrine, especially in light of the ever-evolving technologies of the modern age. Without such a limit, the government could theoretically, without the probable cause required for a warrant, obtain data from multitudes of third-party actors who collect various pieces of information about citizens in order to build an intimate, detailed picture of one’s health, travels, finances, sleep schedules, contacts, internet history, purchases, and more.


These troubles may have been on the Supreme Court Justices’ minds when they granted certiorari in the Sixth Circuit case United States v. Carpenter, a CSLI case with many of the same concerns as Graham. Regardless of how the Court holds, crafting a doctrine that attempts to grapple with the evolution of technology will be a difficult task. In response to the Graham decision and the debates surrounding the third-party doctrine and the Fourth Amendment, this Recent Development analyzes the Fourth Circuit’s holding regarding the aggregation of CSLI data and discusses the potential consequences, as well as the potential remedies to these consequences. It proposes a different approach to the aggregation of non-content under the third-party doctrine based upon an individual’s reasonable assumptions regarding how data will be used.



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