Amicus Briefs Filed in Fifth Circuit Cell-Site Case

Does government collection of cell-site records implicate the Fourth Amendment after United States v. Jones? I mentioned a while back that I had filed an amicus brief in a pending Fifth Circuit case that touches on that question. The question in the Fifth Circuit case is whether magistrate judges can deny applications for court orders to obtain historical cell-site records based on concerns that executing the orders may violate the Fourth Amendment. The United States is the only party to the litigation, but the amicus briefs in support of affirmance were due last week. Here’s a run-down of the briefs so far:

1. Merits Brief of the United States (argues that magistrate judges must grant the applications because historical cell-site data is not protected by the Fourth Amendment).
2. Amicus Brief of Orin Kerr in Support of Reversal (argues that magistrate judges must grant the applications because the constitutional question is not yet ripe for adjudication).
3. Amici Brief of the ACLU, the Electronic Frontier Foundation, the Center for Democracy and Technology, and NACDL in Support of Affirmance (argues that magistrates have the statutory discretion to grant or deny applications on Fourth Amendment grounds, and that the Fourth Amendment requires a warrant for the collection of cell-site records).
4. Amicus Brief of the Electronic Privacy Information Center in Support of Affirmance (argues that cell-site monitoring is a search under United States v. Jones).
5. Amicus Brief of Susan Freiwald in Support of Affirmance (argues that magistrate judges must deny the applications because historical cell-site data is protected by the Fourth Amendment and requires a warrant).

The government now has two weeks to file a reply brief responding to the amicus briefs.