WaPo: Volokh Conspiracy: Eleventh Circuit rules for the feds on cell-site records — but then overreaches

WaPo: Volokh Conspiracy: Eleventh Circuit rules for the feds on cell-site records — but then overreaches by Orin Kerr:

The en banc Eleventh Circuit has ruled that historical cell-site records are not protected by the Fourth Amendment under the third-party doctrine. The case, United States v. Davis, also adds an alternative holding that is even more important: Even if cell-site records were protected, the en banc court holds, accessing them would trigger only minimal Fourth Amendment concerns and would not require a warrant or probable cause. My bottom line: I agree with court’s ruling that the third-party doctrine applies and there was no search, but I think the alternative holding is puzzling, inconsistent with precedent, and unnecessary. But stay tuned. It’s a long shot, but that second alternative holding might end up drawing Supreme Court review of both holdings.

This post will go through the majority’s reasoning and then offer my thoughts. There’s also lots of interesting stuff in the concurring and dissenting opinions, but in the interests of space and time I’ll stick with the majority opinion.