Eleventh Circuit rules for the feds on cell-site records -- but then overreaches

[Commentary] The en banc Eleventh Circuit has ruled that historical cell-site records are not protected by the Fourth Amendment under the third-party doctrine. The case, United States v. Davis, also adds an alternative holding that is even more important: Even if cell-site records were protected, the en banc court holds, accessing them would trigger only minimal Fourth Amendment concerns and would not require a warrant or probable cause. My bottom line: I agree with court’s ruling that the third-party doctrine applies and there was no search, but I think the alternative holding is puzzling, inconsistent with precedent, and unnecessary. But stay tuned. It’s a long shot, but that second alternative holding might end up drawing Supreme Court review of both holdings.

[Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School]