metadata created by electronic communications generally, the use of mobile
devices for that activity generates a constant stream of location data through
wireless pings to nearby cellular towers and GPS signals.
268
This type of location information has the capacity to generate a detailed
record of First Amendment activities, raising many of the same privacy con-
cerns that motivated the Supreme Court in United States v. Jones.
269
Jones held
that a Fourth Amendment search occurred when the police attached a GPS
tracker to a car and monitored it for 28 days.
270
The opinion of the Court
focused on the physical trespass involved in affixing the GPS device to a private
vehicle, but five Justices also concluded that the location tracking itself violated
the defendant’s reasonable expectations of privacy.
271
For Justice Alito, it was
critical that such cost-efficient, comprehensive, and covert surveillance had no
late 18th-century analog.
272
Justice Sotomayor pointed to the “wealth of detail”
about “familial, political, professional, religious, and sexual associations” cre-
ated by GPS monitoring.
273
It was not lost on the Jones Court that similar information could be obtained
through access to cell phone location records,
274
but the majority chose not to
504, 522 (Fla. 2014) (finding an expectation of privacy in real-time cell-site information notwithstand-
ing the fact the records are disclosed to the phone company or “to a business or other entity for personal
purposes”); Commonwealth v. Augustine, 4 N.E. 3d 846, 863 (Mass. 2014) (finding that even though
historical cell-site information is “business information” privacy interests require police to obtain a
search warrant to obtain them); State v. Earls, 70 A.3d 630, 632 (N.J. 2013) (recognizing an expectation
of privacy in historical cell-site information because “cell phones can now trace our daily movements
and disclose not only where individuals are located at a point in time but also which shops, doctors,
religious services, and political events they go to, and with whom they choose to associate”); see also
United States v. Powell, 943 F. Supp. 2d 759, 776 (E.D. Mich. 2013) (finding an expectation of privacy
in real-time, cell-site tracking records “not just because of the potential for tracking into protected
areas, because the information obtained through such means is, in the aggregate, so comprehensive”).
268. See In re U.S. for an Order Authorizing the Release of Historical Cell-Site Info., 809 F. Supp.
2d at 115 (describing cell phone location technology); Augustine, 4 N.E. 3d at 853; Earls, 70 A.3d at
636-38. See generally, The Electronic Communications Privacy Act (ECPA), Part 2: Geolocation
Privacy and Surveillance: Hearing Before the Subcomm. on Crime, Terrorism, Homeland Sec. &
Investigations of the H. Comm. on the Judiciary, 113th Cong. 6 (2013) (statement of Matt Blaze,
Associate Professor, University of Pennsylvania), http://fas.org/irp/congress/2013_hr/ecpa2.pdf. Mod-
ern smartphones produce even more types of metadata, stemming from features like voicemail, instant
messaging, and full-blown Internet access. See Riley v. California, 134 S. Ct. 2473, 2490 (2014). Every
software application, or “app,” installed a smartphone also produces metadata, which can include
current and historic location information, user contacts, age, gender, and a unique device identification
number. Scott Thurm & Yukari Iwatani Kane, Your Apps Are Watching You,W
ALL ST. J. (Dec. 17,
2010), http://www.wsj.com/articles/SB10001424052748704368004576027751867039730.
269. United States v. Jones, 132 S. Ct. 945 (2012).
270. Id. at 949.
271. Id. at 958, 964 (Alito, J., joined by Ginsburg, Breyer, and Kagan, JJ., concurring); id. at 955
(Sotomayor, J. concurring).
272. Id. at 958 (Alito, J., concurring).
273. Id. at 955 (Sotomayor, J., concurring) (citing People v. Weaver, 909 N.E.2d 1195, 1999 (N.Y.
2009)); see also David J. Solove, The First Amendment as Criminal Procedure, 82 N.Y.U. L. R
EV. 112,
143–151 (discussing the First Amendment implications of surveillance).
274. Jones, 132 S. Ct. at 963 (Alito, J. concurring) (“Perhaps most significant, cell phones and other
wireless devices now permit wireless carriers to track and record the location of users – and as of June
2016] 289RETHINKING PRIVACY