Privacy of Cell Phone Metadata Unclear

It’s been a very interesting couple of days. Yesterday, the 11th Circuit Court of Appeals found that a person does not have an expectation of privacy with respect to his or her location if they are carrying a cell phone. The full PDF of the decision is available. Two judges penned a compelling dissenting opinion, in which they insightfully pointed out that:

…as far as I can tell, every argument the government makes in its brief regarding cell site location data applies equally well to e-mail accounts, search-engine histories, shopping-site purchases, cloud-storage files, and the like.

So that case was with respect to police requesting cell location information from cell providers, and was essentially based on the third-party doctrine.

Today, the 2nd circuit handed down a related but differing opinion with respect to warrantless, bulk collection of phone call metadata. The decision (PDF) fell short of declaring it unconstitutional, but did assert that Section 215 of the Patriot Act did not authorize bulk phone call metadata collection on United States citizens.

The decisions are distinct, but related. They both relate to phone metadata collected about United States citizens, but one covers actions permissible by domestic law enforcement, the other the actions of intelligence agencies whose mission is supposed to be focused on foreign intelligence collection. Increasingly, the distinction between domestic and foreign is blurred, leading to complexity and confusion.