Jed Davis was quoted in an article in Law360 entitled "High Court Phone Case Could Crimp Use of Location Data" in which he discussed the Supreme Court's decision to review the Sixth Circuit's 2016 decision in Carpenter v. United States. In its 2016 decision, the Sixth Circuit, agreeing with most circuits that have previously ruled on the issue, held that when a carrier generates cell-site data in the ordinary course of serving the user of a target wireless phone, the 4th Amendment does not condition the government's acquisition of those records on its obtaining a warrant based on probable cause. Rather, it is constitutionally sufficient if the government provides a court with statutorily-mandated proof showing that the requested cell-site records are relevant and material to an ongoing criminal investigation.
"There's at least two questions raised by the cert grant: One is whether or not warrantless access to historical phone records created by a third party is permitted. And the second is, even if so, is there some point in the course of an investigation, some number of days, when this collection becomes so invasive that a warrant is required?" Jed told Law360 in an interview. "It's about time those issues are resolved."
For more than 20 years, Jed said, investigators have been authorized by the Stored Communications Act to obtain historical cell-site data on a showing of "relevance and materiality," a lower standard than the probable cause requirement for a search warrant. And, investigators have been authorized to use criminal subpoenas to acquire detailed third-party records, such as credit card history without prior judicial permission, based merely on relevance. Like cell-site data, such records can be pieced together to reveal a person's daily activities, Jed explained.
"The Supreme Court will have to resolve whether there's any constitutional difference between a person powering on their phone to obtain cell service and a person transacting other business with third parties who likewise generate detailed records relating to that person's movements and conduct," he said.
On February 5, partners Dan Wenner and Jed Davis will present a webinar, "Cybersecurity Incident Report: Applying Reason And Rigor To Control Chaos," produced by PLAC (formerly the Product Liability Advisory Council).
Day Pitney sponsored a program, "Parade of Corporate Horribles: Responding Ethically to a New Problem Around Every Corner," presented by the Westchester/Southern Connecticut Chapter of the Association of Corporate Counsel (ACC).
Day Pitney White Paper
On September 13, Jed Davis was a featured panelist on a webinar, "The Threat at Your Doorstep: Why You Should be Using Cyber Threat Sharing," produced by Thomson Reuters.
Day Pitney Alert
Jed Davis was quoted in an article, "Marriott Hack Shows Risks Of Lax Cyber Diligence In Mergers," published by Law360.
Day Pitney Press Release
Jed Davis was quoted in a feature article, "The Privacy Fight For Digital Data Warrants Is Just Starting," published by Law360.
Steven Cash was quoted in an article, “Mystery in Mueller Probe: Where’s the Hacking Indictment?,” published by The Hill.
Jed Davis was quoted in an article, “Phantom Arrest Shows Tech Cos. Must Police Own Products,” published by Law360.