32 Pages Posted: 23 Jan 2016
Date Written: January 21, 2016
In Other People's Papers, Jane Bambauer argues for careful reform of the Fourth Amendment's third party doctrine, providing an important contribution to an increasingly rich field of scholarship, judicial opinion, statute, and law reform. Bambauer is especially concerned with access to bodies of third-party data that can be filtered and mined, as they can be privacy invasive but also effective and less subject to traditional investigative prejudices and limitations. Although her article provocatively overclaims in trying to set itself apart from existing proposals, by analyzing existing constitutional and statutory law — including what I have termed a "limited" third party doctrine — and comparing and contrasting her recommendations to those of the American Bar Association Criminal Justice Standards, this article continues the project of formulating how best to regulate law enforcement access to bulk metadata, focusing on cell-site location. The Standards provide an array of access options, the application of which requires struggling with the meaning of relevance and reasonable suspicion in the world of big data and data mining. As scholars have warned and as the National Security Agency's interpretation of USA PATRIOT Act Section 215 has demonstrated, the courts and criminal justice community have work remaining in better defining the meaning of these core terms. My favored analysis suggests legislatures should consider permitting cell-tower dumps for a single point in time upon crime commission, but that for any longer durations they should require a means of selective revelation.
Keywords: fourth amendment, expectation of privacy, search, third party doctrine, privacy, cell site location, cell tower, location privacy
JEL Classification: K00, K14
Suggested Citation: Suggested Citation
Henderson, Stephen E., A Rose by Any Other Name: Regulating Law Enforcement Bulk Metadata Collection (January 21, 2016). 94 Texas L. Rev. See Also 28 (2016). Available at SSRN: https://ssrn.com/abstract=2719702