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Hastings Constitutional Law Quarterly

Abstract

This note will discuss whether current Fourth Amendment jurisprudence adequately protects user location information obtained from location-based services ("LBS"), and if not, what changes can be made to ensure our right to privacy in this digital information. In Part I, the concept of LBS and a technical description of how it works is discussed. Part II summarizes the Supreme Court's recent decision in United States v. Jones on warrantless prolonged use of a GPS tracking device and will outline the Fourth Amendment jurisprudence underpinning the Court's logic. Part III delivers an in-depth description of federal statutory law that applies to the seizure of electronic information. Part IV debates whether and to what extent LBS user location data is protected under applicable federal statutes and will analogize to current case law on similar electronic communications. Part V surveys recently proposed reforms to the Electronic Communications Privacy Act of 1986 ("ECPA").

This note concludes that LBS user location information-and electronic communications generally-must receive Fourth Amendment protection, despite the fact that they are transmitted through intermediaries and their content is possibly shared with more than one person. The law changes incrementally, while technology does not. Technological change is disruptive. Current Fourth Amendment jurisprudence is outdated and will soon be overwhelmed, structurally unable to bear the wave of new LBS on the horizon. As information technology continues to reshape American life, we need clear and strong rules to protect the privacy of our electronic communications. The goal of this note is to emphasize the importance of treating electronic communications, including LBS user location information, with the restraint dictated by the Fourth Amendment.

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