I. Introduction

George Orwell’s classic novel, 1984, describes a futuristic society where everything you say, do, and think is constantly monitored by “Big Brother.” The concepts outlined in the novel represent the danger of a government that is too powerful and encompasses the fear that comes with a diminishing right to privacy. The Framers of the Constitution also imagined and feared, at least to some degree, a time when the government’s interference with a citizen’s “person, papers, houses, and effects” may grow too vast and become unnecessarily invasive.[i] These four categories, expressly enumerated in the Fourth Amendment,[ii] have traditionally been held as having a great amount of protection from government interference.[iii]

Although the Framers used very careful word choices and impressively phrased the Constitution as to withstand various interpretations in the wake of many changes throughout American history, there were surely certain things that they were unable to foresee.[iv] These unforeseen issues have had a major impact on our interpretation of the Constitution—namely, modern technology.[v] One of the major developments that has emerged from the implied language of the Fourth Amendment is the “right to privacy.”[vi] The phrase “reasonable expectation of privacy” does not expressly appear anywhere in the Fourth Amendment;[vii] however, it has gained common usage in the application of, and decisions regarding, modern constitutional law.[viii]

The Fourth Amendment specifically provides that people have a right to be secure from “unreasonable searches and seizures.”[ix] However, as with others, this right can be diminished,[x] waived,[xi] and even forfeited.[xii] Because of this, two general questions have emerged: (1) “to what extent can this right be diminished?”[xiii] and (2) “for how long can the diminution last?”[xiv] According to the Supreme Court, one way the right to privacy can be diminished is by “voluntarily” providing information to third-parties.[xv]

The courts have made several references to the “third-party doctrine” in determining the scope of the Fourth Amendment concerning information provided to third-parties.[xvi] In Miller v. United States, the court found that bank records containing information voluntarily given by Miller were not subject to Fourth Amendment protection even though the bank was required by statute to maintain such records.[xvii] Likewise, in Smith v. Maryland, the Supreme Court found that the government’s use of a pen register to obtain the numbers dialed by Smith on his telephone did not constitute a search.[xviii] This was deemed not to be a search because Smith dialed the numbers knowing that they would be transmitted to a third-party—the phone company—and once dialed, Smith did not have any expectation of privacy in the numbers.[xix] These cases present a rather chilling proposition that, by using modern technology, our society becomes subject to an increasingly Orwellian future.

In the Eleventh Circuit’s recent decision in United States v. Davis,[xx] the court applied the third-party doctrine to the government’s acquisition of records from a cell phone company, which displayed the general location of Davis during several robberies.[xxi] This note will primarily discuss the implications of continued use of the third-party doctrine as referenced in Davis. Part II provides a historical background of the third-party doctrine and begins to track its application to increasingly advanced technology. Part III provides a summary of the facts and opinions of the court in Davis. Part IV discusses the implications of the application of the third-party doctrine in Davis, and analyzes the emerging trend allowing a person to “[trade] privacy for convenience,”[xxii] with respect to the rapid advancement and increasing sophistication of technology.[xxiii] Part V offers final thoughts on how the continued use of the third-party doctrine could pose a serious threat to privacy rights.

II. The Third-Party Doctrine

The protection afforded under the Fourth Amendment is not only subject to reasonableness, but generally requires the use of a warrant to access protected areas and items.[xxiv] “[T]he most basic constitutional rule is that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.”[xxv] With the introduction and continued use of the third-party doctrine,[xxvi] the courts have added to the ways by which the warrant requirement can be evaded, perhaps unnecessarily.

A. Keep Your Friends Close and Your Information Closer

In its 1976 decision in United States v. Miller,[xxvii] the Supreme Court introduced the third-party doctrine.[xxviii] This doctrine allowed the government to subpoena Miller’s account records, which contained information that Miller provided to the bank.[xxix] Miller argued that the account records should be suppressed under the exclusionary rule, but the Court did not agree.[xxx] The Court held that Miller had no “legitimate expectation of privacy” in the account records for two reasons: (1) the documents were business records of transactions to which the banks were parties and (2) Miller voluntarily conveyed the information to the banks.[xxxi] In this holding, the Supreme Court noted “that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.”[xxxii] Thus, the broad third-party doctrine was born.

The holding of Miller was soon after reaffirmed when the Supreme Court reviewed Smith v. Maryland.[xxxiii] In Smith, the Court held that telephone users have no reasonable expectation of privacy in the dialed numbers recorded through pen registers that are contained in the third-party telephone company’s records.[xxxiv] Even though Smith argued that he had a heightened expectation of privacy since he made the calls in his home, perhaps his most sacred place, the court was not moved.[xxxv] The Court found that although Smith’s conduct may have been calculated to keep the contents of his conversations private, it did not preserve an expectation of privacy in the information he voluntarily transmitted to the third-party telephone company[xxxvi]—certainly not one which “society is willing to recognize as reasonable.”[xxxvii]

B. “Big Brother” is Watching, But Not Too Closely

The Supreme Court “consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties”;[xxxviii] however, that’s not to say this rule is without exceptions. In fact, the Supreme Court has afforded a heightened privacy interest for overnight guests;[xxxix] therefore, “the fact that a hotel guest has exposed his or her belongings to hotel workers does not, in and of itself, entitle the government to enter a rented hotel room and conduct a warrantless search.”[xl] Additionally, even though telephone operators were known to eavesdrop on calls,[xli] the Supreme Court held in Katz v. United States that we have a reasonable expectation of privacy in our private telephone communications.[xlii] Even statutes allowing the government to obtain records from third-party companies can contain safeguards “built in” that require the official seeking the record to provide more than just mere suspicion.[xliii]

The idea of limitations on what information the government may and may not collect without a warrant is further evidenced by the Supreme Court’s recent decision in United States v. Jones.[xliv] In Jones, the government attached a GPS device to Jones’ private vehicle and used its own device to track the vehicle’s movement over a four-week period.[xlv] The Court held that the government’s physical intrusion on Jones’ personal vehicle, and the use of constant and real-time GPS tracking was a “search” and violated the Fourth Amendment.[xlvi] While the Court focused its analysis on a property-based approach, rather than assessing the third-party doctrine,[xlvii] Justice Sotomayor stated: “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third-parties.”[xlviii] She also noted:

"This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks . . . . I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection."[xlix]

This further evidences the concern of whether the third-party doctrine remains appropriate in light of this digital age. While the Supreme Court purposely did not attempt to completely address this concern in Jones,[l] Justice Sotomayor did note that “some people may find the ‘tradeoff’ of privacy for convenience ‘worthwhile.’”[li]

III. United States v. Davis: What is “Voluntary”?

A. Background

In late 2010, Quartavius Davis and his accomplices committed seven separate armed robberies in a two-month period in South Florida.[lii] The robbery locations included a pizzeria, a gas station, a drug store, an auto parts store, a beauty salon, a fast food restaurant, and a jewelry store.[liii] In February 2011, Davis and his accomplices were indicted and charged with violations of the Anti-Racketeering Act, also known as the “Hobbs Act,”[liv] and conspiracy to violate the Hobbs Act.[lv]

At trial, the prosecution offered evidence of Davis’ part in each conspiracy and robbery.[lvi] This evidence included accomplice and eyewitness testimony, surveillance videos, and telephone records obtained from Davis’ cell phone carrier.[lvii] Davis objected to the use of the phone records at trial, but the district court overruled the objections and allowed the records into evidence, and Davis was convicted.[lviii] An Eleventh Circuit panel determined that Davis’ rights were violated when the government obtained his phone records;[lix] however, the panel nonetheless affirmed the conviction by applying the “good-faith exception” to the exclusionary rule.[lx] The Eleventh Circuit vacated the panel’s decision and granted the government’s petition for rehearing en banc.[lxi]

B. Majority Opinion – An Over-Application of the Third-Party Doctrine

Davis argued that the government violated his Fourth Amendment rights by obtaining historical cell tower location information from MetroPCS’ business records without a search warrant and a showing of probable cause.[lxii] The telephone records were acquired pursuant to the Stored Communications Act, which requires “a court of competent jurisdiction” to find “specific and articulable facts showing that there are reasonable grounds to believe” that the records sought by the government “are relevant and material to an ongoing criminal investigation.”[lxiii]

The Court first analyzed whether or not a Fourth Amendment “search” had occurred.[lxiv] Finding that no physical intrusion had occurred,[lxv] the Court focused its efforts on determining whether Davis had a “reasonable expectation of privacy.”[lxvi] “A party alleging an unconstitutional search under the Fourth Amendment must establish both a subjective and an objective expectation of privacy to succeed.”[lxvii] Even though both cases pertained to telephones, the Court quickly distinguished the current case from the facts of Katz,[lxviii] where the Supreme Court found that the government’s recording of the content of private conversations was unreasonable.[lxix]

After recognizing the difference between the current case and Katz, the Court turned its attention to the third-party doctrine.[lxx] Relying on the Supreme Court precedent in Miller and Smith, the Court found that Davis did not have a legitimate expectation of privacy in the information he “voluntarily” turned over to the third-party phone company.[lxxi] The court agreed with a recent Fifth Circuit decision,[lxxii] which concluded that “[c]ell phone users… understand that their service providers record their location information when they use their phones at least to the same extent that the landline users in Smith understood that the phone company recorded the numbers they dialed.”[lxxiii] Furthermore the Fifth Circuit held “that technological changes can alter social expectations of privacy . . . . ‘Law enforcement tactics must be allowed to advance with technological changes, in order to prevent criminals from circumventing the justice system.’”[lxxiv] As such, in accordance with the third-party doctrine, a warrant was not required for the government to obtain Davis’ records from MetroPCS.[lxxv]

C. A Mixed Bag of Concurring Opinions

In his concurring opinion, Judge William Pryor emphasized the majority’s opinion on “voluntariness,”[lxxvi] making a clear comparison between the voluntary nature of dialing phone numbers in Smith[lxxvii] and conveying approximate location while using a cell phone.[lxxviii] Taking this proposition to the extreme, Judge Pryor stated: “[i]f a telephone caller does not want to reveal dialed numbers to the telephone company, he has another option: don’t place a call. If a cell phone user does not want to reveal his location to a cellular carrier, he also has another option: turn off the cell phone.”[lxxix]

In contrast, Judge Rosenbaum, while concurring in the majority opinion, opined that simply “[turning] off the cell phone” may not be so easy—or reasonable.[lxxx] “[U]nless a person is willing to live ‘off the grid,’ it is nearly impossible to avoid disclosing the most personal of information to third-party service providers on a constant basis, just to navigate daily life.”[lxxxi] Through these ideas, Judge Rosenbaum raised very plausible concerns for the future of the Fourth Amendment with the rapid advancement of technology if privacy interests are not allowed to trump the third-party doctrine.[lxxxii]

D. Martin’s Dissent – “A Slippery Slope”

In his dissent, Judge Martin raised several concerns regarding the continued use of the third-party doctrine and makes a stark contrast between Smith and the current case.[lxxxiii] First, Judge Martin combats the argument that transmitting location data from a cell phone is “knowing” or “voluntary,”[lxxxiv] noting a recent decision from the Third Circuit.[lxxxv] Second, Judge Martin, by reference to several Supreme Court cases,[lxxxvi] demonstrated that the third-party doctrine is not meant to be all-encompassing and should have a much narrower scope.[lxxxvii] Judge Martin opined that “a wooden application of the third-party doctrine” would result in a “slippery slope” that will continually diminish privacy rights as technology grows more and more prevalent.[lxxxviii]

IV. A Fine Line, But Where is it Drawn?

A. Terms and Conditions May Apply

In Davis, the majority relied on the notion that the evidence obtained was “non-content” evidence.[lxxxix] To this point, the dissent raises a very significant question: what distinguishes “content” and “non-content” evidence?[xc] This line drawing is essential to protecting Fourth Amendment rights as technology continues to evolve, and courts must be very careful in determining where privacy interests should be fortified and where they can be diminished.[xci]

Since companies can require and store any information they want as “terms and conditions” of using their service,[xcii] the courts must carefully determine what type of information should be granted protection under the Fourth Amendment.[xciii] The proposition that any “[e]vidence lawfully in the possession of a third-party is not [the user’s], even if it has to do with him,”[xciv] is truly frightening. If this holds true, then eventually anything a person does, says, or gives “willfully” to a third-party could allow the government to request and use that information without a warrant,[xcv] subject to very few limitations.[xcvi]

B. If the Trend Continues – “Fear Will Take the Place of Freedom”

As technology becomes a bigger part of our daily lives,[xcvii] there is a substantial danger of information that we wish to be kept private becoming vulnerable to prying government eyes.[xcviii] While the Supreme Court has held in Jones that the government cannot use its own GPS to track the movements of a person or vehicle,[xcix] the justices did not clarify how this decision would affect location-based cell phone services that come from the user’s personal device. If the current trend in liberally applying the third-party doctrine continues,[c] we may, one day, become subject to an Orwellian society, where the government can and will monitor everything we do.[ci] Although there may have been a reasonable basis for the use of the third-party doctrine decades ago in cases like Smith,[cii] modern cell phones are distinguishable from the landlines in Smith—they contain much more private and personal information and should be afforded greater protection.[ciii]

Not only is cell phone use becoming more and more prevalent,[civ] but in Riley v. California, the Supreme Court found that “nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting they even use their phones in the shower.”[cv] With the advent of newer and more sophisticated technology—such as Google Glass, a wearable technology that constantly collects data from the user and his surroundings—the information that we will be disclosing to companies will continue to increase. Society should not have to worry about the government being able to access this information at any time, just to use what are becoming “basic [necessities] of twenty-first century life.”[cvi] If the current trend continues, we may one day find ourselves subject to a system where the government could obtain the most private of information including: familial, political, professional, religious, and even sexual associations.[cvii] Our expectation of privacy should not be lowered just because our medium of acquiring the information has evolved.[cviii] To do so would allow “fear [to] take the place of freedom.”[cix]

C. The Need for Clarity

The recent decisions in various courts regarding the third-party doctrine should make technology users very worried about what information they are sharing—willingly or unwillingly—and how that information can be used.[cx] While some courts have opted to afford protection to certain cell location data,[cxi] others have held that it is obtainable without a warrant.[cxii] Although there is yet to be a clear conflict amongst the various circuits,[cxiii] clarity from the Supreme Court would certainly be helpful in determining where this fine line is to be drawn.

Although the broad application of the third-party doctrine raises some alarming propositions, the Supreme Court could solve a lot of the issues by requiring the government to take one simple step that traditionally it has already been doing: get a warrant.[cxiv] Requiring a warrant, as the Fourth Amendment generally dictates,[cxv] would hardly impede the government’s investigation,[cxvi] as the well-established exceptions to the warrant requirement would still apply.[cxvii] The majority in Davis made it a point to emphasize that there are “additional privacy protections built in” to the Stored Communications Act[cxviii] and that the government is required to do “more before [they] can obtain telephone records from third-party businesses.”[cxix] On top of that, both Davis and the government agree that there was probable cause sufficient to secure a search warrant for the records, had the government elected to get one.[cxx] Clearly, the best and easiest solution to the issues with the third-party doctrine would be to simply require a warrant and ensure that the Fourth Amendment is being upheld properly.

D. What is Privacy Worth?

Ultimately, the Court’s decision in Davis implies that a person’s privacy is a bargaining chip in a society that values convenience—often times above all else. The amount of information we provide about ourselves on the internet through social media, search engines, online shopping, and more is truly amazing.[cxxi] The amount of personal information we carry around in our pockets and bags stored in our electronic devices—such as smartphones, laptops, and tablets—is unprecedented. In this present society, which is so focused on networking and staying connected, should the government be able to “reach in” and grab whatever information they would like from the people and companies we have entrusted to keep it secure? If the answer to this questions is “yes,” it certainly shouldn’t be without carefully planned limitations.

As of now, the third-party doctrine does not provide these necessary safeguards that will allow society to differentiate between when they are simply performing normal online activities, and when they are actually giving up their right to privacy and availing themselves to the will of the government. If a person wants to “trade [their] privacy for convenience,” that is certainly up to them, but calling this decision “voluntary” or “willingly” is currently too far of a stretch.

V. Conclusion

With the introduction of exceptions to the warrant requirement,[cxxii] and the addition of requirements to establish a “reasonable expectation of privacy,”[cxxiii] the courts have slowly whittled away some of the protection afforded by the Fourth Amendment. The benefit of allowing the government to circumvent the warrant requirement through the third-party doctrine is becoming more and more outweighed by its negative implications on our right to privacy as we live in this digital world—where everyone and everything is connected and data is freely transmitted to third-parties every second of every day. As our technology evolves, our constitutional rights must be fortified, not forfeited. With the growing impracticability of living “off the grid,” the courts must analyze the third-party doctrine in its present, non-historical context and ensure that the lines that must be drawn, are drawn appropriately to withstand inevitable changes and uphold the right to privacy.

_____________________________________________________________________

Footnotes:

[i] U.S. Const. amend. IV.

[ii]Id.

[iii]See, e.g., Katz v. United States, 389 U.S. 347 (1967); Kyllo v. United States, 533 U.S. 27 (2001).

[iv]See United States v. Davis, 785 F.3d 498, 528 (11th Cir. 2015) (en banc) (Rosenbaum, J., concurring) (noting that the telephone wasn’t even invented until the 1800s).

[v]See Nathaniel Wackman, Note, Historical Cellular Location Information and the Fourth Amendment, 1 Ill. L. Rev. 264, 290-94 (2015) (referencing “new technology cases”); see also Kyllo, 389 U.S. at 35 (rejecting a “mechanical interpretation of the Fourth Amendment” in the face of “advancing technology”).

[vi]Katz, 389 U.S. at 347 (adding the “reasonable-expectation-of-privacy” test).

[vii] U.S. Const. amend. IV.

[viii]See generally United States v. Miller, 425 U.S. 435 (1976) (analyzing whether the defendant had a “legitimate expectation of privacy” in bank record contents).

[ix] U.S. Const. amend. IV.

[x]See United States v. Davis, 785 F.3d 498, 517 (11th Cir. 2015) (en banc) (citing Maryland v. King, 133 S.Ct. 1958, 1969 (2013) (identifying “diminished expectations of privacy”)).

[xi]See Orin S. Kerr, The Case for the Third Party Doctrine, 107 Mich. L. Rev. 561, 588 (2009) (citing Hoffa v. United States, 385 U.S. 293 (1966) (discussing whether “[t]he Government’s deception . . . prevented any intelligent and understanding waiver of [Hoffa’s] Fourth Amendment rights”)) [hereinafter The Case].

[xii]See, e.g., Miller, 425 U.S. at 442 (citing Katz v. United States, 398 U.S. 347, 351 (1967) (“What a person knowingly exposes to the public . . . is not subject to Fourth Amendment protection.”).

[xiii]See, e.g., Davis, 785 F.3d at 507 (citing Katz, 389 U.S. at 348 (holding that the government can’t obtain the content of private phone calls)); but see Smith v. Maryland, 442 U.S. 735, 742-46 (1979) (holding that the government could obtain the numbers dialed to place a call)).

[xiv]Compare Davis, 785 F.3d at 515 (holding that obtaining 67 days of phone location records did not violate the Fourth Amendment), with United States v. Jones, 132 S.Ct 945, 948-49 (2012) (noting that “long-term” location-monitoring generally violates the Fourth Amendment).

[xv]See Miller, 425 U.S. at 442 (holding no expectation of privacy in information voluntarily conveyed to a third-party bank).

[xvi]See, e.g., Smith, 442 U.S. at 735 (applying the third-party doctrine).

[xvii]Miller, 425 U.S. at 435.

[xviii]Smith, 442 U.S. at 735.

[xix]Id.

[xx] 785 F.3d 498 (11th Cir. 2015) (en banc).

[xxi]Id.at 513.

[xxii] United States v. Jones, 132 S.Ct. 945, 957 (2012) (Sotomayor, J., concurring).

[xxiii]See Davis, 785 F.3d at 521 (Pryor, J., concurring) (“As technology advances, location information from cellphones (and, of course, smartphones) will undoubtedly become more precise and easier to obtain.”).

[xxiv] U.S. Const. amend. IV.

[xxv] Tracey v. Florida, No. 11-2254, slip op. at 12 (Fla. Oct. 14, 2014) (internal citation omitted).

[xxvi]See generally United States v. Miller, 425 U.S. 435 (1976); In re Application of the United States for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013) [hereinafter In re Application (Fifth Circuit)].

[xxvii] 425 U.S. 435 (1976).

[xxviii]See Davis, 785 F.3d at 533 (Martin, J., dissenting) (Citing Miller, 425 U.S. at 435).

[xxix]Miller, 425 U.S. at 437-38.

[xxx]Id.at 440-43.

[xxxi]Id.

[xxxii]Id. at 443.

[xxxiii] 442 U.S. 735 (1979).

[xxxiv]Id. at 742-46.

[xxxv]Id. at 743.

[xxxvi]Id.

[xxxvii] Katz v. United States, 389 U.S. 347, 361 (1967).

[xxxviii] United States v. Davis, 785 F.3d 498, 509 (11th Cir. 2015) (en banc) (citing Smith, 442 U.S. at 743-44).

[xxxix] Minnesota v. Olson,495 U.S. 91, 96-97 (1990).

[xl]Davis, 785 F.3d at 526 (Rosenbaum, J., concurring).

[xli]Id. (citing Jeff Nilsson, What the Operators Overheard in 1907, The Saturday Evening Post, June 30, 2012, available at http://www.saturdayeveningpost.com/2012/06/30/history/post-perspective/operators-heard-1907.html).

[xlii]Katz, 389 U.S. at 361.

[xliii]See, e.g., Stored Communications Act, 18 U.S.C. § 2701.

[xliv] 132 S.Ct. 945 (2012).

[xlv]Id. at 948.

[xlvi]Id. at 954 (affirming lower court’s decision that the attachment of the GPS constituted a search).

[xlvii] United States v. Davis, 785 F.3d 498, 513 (11th Cir. 2015) (en banc).

[xlviii]Jones, 132 S.Ct. at 957 (Sotomayor, J., concurring) (citing Smith v. Maryland, 442 U.S. 735, 742 (1979)).

[xlix]Id.

[l]Davis, 785 F.3d at 514 (“Justice Sotomayor, writing alone, raised a question, but did not even purport to answer it.”).

[li]Jones, 132 S.Ct. at 957 (Sotomayor, J., concurring).

[lii]Davis, 785 F.3d at 500.

[liii]Id.

[liv]Id. (citing 18 U.S.C. § 1951).

[lv]Id.

[lvi]Id. at 501.

[lvii]Id.

[lviii]Id. at 504.

[lix]Id. at 504-05.

[lx]Id.

[lxi]Id. at 505.

[lxii]Id.

[lxiii]Id. at 502 (citing 18 U.S.C. § 2703(d)).

[lxiv]Id. at 506.

[lxv]Id.

[lxvi]Id. at 507 (citing Katz v. United States, 389 U.S. 347 (1967)).

[lxvii] United States v. Robinson, 62 F.3d 1325, 1328 (11th Cir. 1995).

[lxviii]Davis, 785 F.3d at 507.

[lxix]Katz, 389 U.S. at 351-53.

[lxx]Davis, 785 F.3d at 507.

[lxxi]Id. at 511-13.

[lxxii]Id. at 510.

[lxxiii] In re Application (Fifth Circuit), 724 F.3d 600, 613 (5th Cir. 2013).

[lxxiv]Id. at 614 (quoting United States v. Skinner, 690 F.3d 772, 778 (6th Cir. 2012)).

[lxxv]Davis, 785 F.3d at 509.

[lxxvi]Id. at 519 (Pryor, J., concurring).

[lxxvii] Smith v. Maryland, 442 U.S. 735 (1979).

[lxxviii]Davis, 785 F.3d at 519 (Pryor, J., concurring).

[lxxix]Id. at 520.

[lxxx]Id. at 525 (Rosenbaum, J., concurring).

[lxxxi]Id.

[lxxxii]Id. at 532-33.

[lxxxiii]Id. at 534 (Martin, J., dissenting).

[lxxxiv]Id.

[lxxxv]See In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. To Disclose Records to the Gov’t, 620 F.3d 304, 317-18 (3d Cir. 2010) (“[W]hen a cell phone user receives a call, he hasn’t voluntarily exposed anything at all.”).

[lxxxvi]See, e.g., Ferguson v. City of Charleston, 532 U.S. 67 (2001); United States v. Jacobsen, 466 U.S. 109 (1984); Stoner v. California, 376 U.S.483 (1964).

[lxxxvii]Davis, 785 F.3d at 535 (Martin, J., dissenting).

[lxxxviii]Id. at 537.

[lxxxix]See Id. at 511 (majority opinion); see also Katz v. United States, 389 U.S. 347, 353 (1967) (holding that the government could not listen to the content of a private telephone conversation).

[xc]Davis, 785 F.3d at 537 (Martin, J., dissenting) (posing the question: “would a person’s Google search history be content or non-content information?”).

[xci]Id. (“[T]he Supreme Court has insisted that technological change sometimes requires us to consider the scope of decades-old Fourth Amendment rules.”).

[xcii]Id. at 536 (noting the vast amount of information Google collects and maintains about users).

[xciii]Id. (demonstrating the types of information that could be acquired without a warrant under the majority’s holding).

[xciv]Id. at 511 (majority opinion).

[xcv]Id. at 544 (Martin, J., dissenting) (“Under the reasoning employed by the majority, the third-party doctrine may well permit the government access to our precise location at any moment, and in the end, our entire digital lives.”).

[xcvi]See, e.g., Katz v. United States, 389 U.S. 347, 353 (1967) (the content of phone calls is protected); see also United States v. Warshak, 631 F.3d 266, 286-88 (the content of emails is protected).

[xcvii] Stephen J. Blumberg & Julian V. Luke, Wireless Substitution: Early Release of Estimates From the National Health Interview Survey, July-December 2013, National Center for Health Statistics (July 2014) (showing that wireless phone usage is increasing).

[xcviii]Davis, 785 F.3d at 536 (Martin, J., dissenting).

[xcix] United States v. Jones, 132 S.Ct. 945 (2012).

[c]See generally In re Application (Fifth Circuit), 724 F.3d 600 (5th Cir. 2013).

[ci]See Davis, 785 F.3d at 538 (Martin, J., dissenting); but see Tracey v. Florida, No. 11-2254, slip op. at 45 (Fla. Oct. 14, 2014) (holding that society is willing to recognize an expectation of privacy in location data as signaled by one’s cell phone).

[cii] Smith v. Maryland, 442 U.S. 735 (1979).

[ciii]Davis, 785 F.3d at 537-38 (Martin, J., dissenting).

[civ]See Blumberg, supra note 97, at 1.

[cv] Riley v. California, 134 S.Ct. 2473, 2490 (2014).

[cvi]Davis, 785 F.3d at 539 (Martin, J., dissenting).

[cvii]See United States v. Jones, 132 S.Ct. 945, 955 (2012) (Sotomayor, J., concurring); but cf. The Case, supra note 11, at 591 (discussing measures of protection that “fill in the gap” in the Fourth Amendment).

[cviii]Davis, 785 F.3d at 529 (Rosenbaum, J., concurring).

[cix]See United States v. Rumely, 345 U.S. 41, 57-58 (1953) (Douglas, J., concurring).

[cx] Orin Kerr, Eleventh Circuit Rules for the Feds on Cell-Site Records – But Then Overreaches, The Washington Post (May 5, 2015), http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/05/eleventh-circuit-rules-for-the-feds-on-cell-site-records-but-then-overreaches/ [hereinafter Kerr].

[cxi]See, e.g., Tracey v. Florida, No. 11-2254, slip op. (Fla. Oct. 14, 2014).

[cxii]See, e.g., In re Application (Fifth Circuit), 724 F.3d 600 (5th Cir. 2013).

[cxiii]See Kerr, supra note 110.

[cxiv] United States v. Davis, 785 F.3d at 498, 544 (11th Cir. 2015) (en banc) (Martin, J., dissenting) (citing Riley v. California, 134 S.Ct. 2473, 2495 (2014)).

[cxv] U.S. Const. amend. IV.

[cxvi]Davis, 785 F.3d at 543 (Martin, J., dissenting).

[cxvii]Id. (citing Riley, 134 S.Ct at 2494).

[cxviii]Id. at 505-506 (majority opinion).

[cxix]Id. at 506.

[cxx]Id. at 523 (Jordan, J., concurring).

[cxxi]Id. at 536 (Martin, J., dissenting).

[cxxii]See, e.g., Id. at 505 (majority opinion) (noting the availability of “the good faith exception”); Riley v. California, 134 S.Ct. 2473, 2494 (2014) (noting the availability of “the exigent circumstances exception”).

[cxxiii]See California v. Ciraolo, 476 U.S. 207, 211 (1986) (noting that “Katz posits a two-part inquiry” to demonstrate a reasonable expectation of privacy).