Cellphone location records are lumped under Title 1 and Title 2 of the 1986 Electronic Communications Privacy Act, which cover stored communications and call details. Accessing those types of information typically requires only a court order, rather than a warrant.
But should that bill fail, or its sponsors seek to block the addition of location provisions, this issue will likely remain in the courts for at least another year. In the meantime, law enforcement officials will be free to continue collecting location records from any person of interest in an investigation, without facing any requirement to delete that data once they are done with it.
“Once you’ve obtained these records in one case, there’s nothing to stop officials from dumping them in a central database for other unrelated cases. There are currently no minimization rules,” Butler said. “I think it’s going to require more than just a court decision. That could be a precursor, but ultimately, it’s going to be a statutory fix. The courts can’t develop rules or procedures for minimization; those have to be adopted by DOJ or established by statute.”