The Great Cell Phone Tower Data Debate Bound To Hit SCOTUS’ Docket Soon – Are We Living In George Orwell’s 1984?

Few things demonstrate the widespread digitization of our society more than the dramatic transformation of mobile telephones over the past two decades and the increasing reliance upon these revolutionary devices in our business and personal lives. They have evolved from massive devices that required their own carrying cases and large, obtrusive, boom-like antennas, to the sleek, touchscreen mini-computers that have virtually replaced landline telephones and have allowed us to operate a mobile office, conduct a photo or video shoot, send a text message, or connect with family and friends via social media from virtually anywhere in the world.

The devices are so ubiquitous today that there is barely a litigation matter that I handle where some sort of mobile data does not become relevant, invoking enough legal issues to fill a multi-volume treatise. However, one legal issue, given the advanced state of mobile technology and constantly expanding cellular networks, has proven more devisive than any other — whether the government can access location data from an individual's cell phone without a warrant.

In short, cell phone location data is ESI that is generated as a byproduct of the communications between a mobile device and the provider's network infrastructure that supplies the wireless voice and data services for the phone. It is an oversimplification of a vast network of specialized technology, but these mobile networks are driven by geographically placed equipment that ensures the seamless nature of the mobile service, commonly referred to as cellular towers. When a customer moves about with their device, their device is constantly communicating with the provider's towers, ensuring continuity of service. Because the provider's equipment is placed in fixed locations, access to the ESI generated by the device/tower communications can shed light on the general location of the device, and, therefore, reveal the approximate location of the person with the device. While this data does not necessarily give you an exact location, it can be useful nonetheless.

It has been widely reported that law enforcement and the intelligence communities have routinely accessed and made use of cell site location data in an effort to locate individuals. In fact, there have been reports that the government is actively utilizing specially designed equipment to assemble this form of ESI. One might question the value of tower data in light of the fact that most...