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Abstract: Surveillance technology has raced ahead of the Fourth Amendment, forcing courts to confront high-tech intrusions with rusty jurisprudence. The Dirtbox, an airborne cell-site simulator, allows the government to sweep entire cities and intercept individuals' cell phone location information without relying on cooperative intermediaries. This Note argues that the government's use of the Dirtbox and other cell-site simulators amounts to a Fourth Amendment search because it may pinpoint individuals within a constitutionally protected space. Although the Department of Justice issued policy guidelines requiring its agents to obtain a search warrant before using this device, this narrow and unenforceable protocol fails to adequately regulate the rising use of cell phone tracking devices. Until the U.S. Supreme Court accepts the opportunity to modernize the Fourth Amendment, Congress should enact legislation requiring all law enforcement agents to obtain a warrant before using the Dirtbox or other cell-site simulators.
INTRODUCTION
Anaheim, a small city in Southern California, is home to 350,000 residents, Disneyland, and an arsenal of military-grade spy equipment.1 One of the devices used by the Anaheim Police Department is the Dirtbox, a planemounted surveillance system that impersonates a cell phone tower and tricks targeted mobile phones into revealing their location within a ten-foot accuracy.2
Cell phone location tracking raises substantial privacy concerns and thus implicates the Fourth Amendment.3 The Fourth Amendment guards against government encroachment on individuals' privacy, but its protections are not triggered unless a "search" has occurred.4 The U.S. Supreme Court has determined that a search occurs when the government violates an individual's reasonable expectation of privacy.5 Thus, if an individual has a reasonable expectation of privacy in his or her cell phone location information, the government must obtain a warrant before performing Dirtbox surveillance.6 Courts and scholars are divided, however, as to whether people have a reasonable expectation of privacy in cellular location data and as to what constitutional limitations, if any, should be placed on Dirtbox surveillance.7
This Note argues that Dirtbox surveillance amounts to a Fourth Amendment search and therefore the government must be required to get a warrant before using this technology.8 When the government uses a device to determine an individual's location with sufficient accuracy to pinpoint them within a constitutionally protected space, such as the home, the Fourth...