Fourth Circuit grants rehearing, eliminates split, on cell-site surveillance

If you've been waiting for the Supreme Court to decide whether the Fourth Amendment applies to government collection of cell-site records, you will probably have to wait a little longer. On Wednesday, the Fourth Circuit granted the government's petition for rehearing in United States v. Graham, the case on whether and how the Fourth Amendment applies to the collection of historical cell site data. As I explained here back in August, the Fourth Circuit's grant of rehearing eliminates the circuit split (at least for now) with the Fifth and Eleventh Circuits.

The Court could still grant the pending petition from the Eleventh Circuit in United States v. Davis. But that's not likely. With the split now gone, the Supreme Court will probably stay out.

It's interesting to see the level of en banc interest among the federal circuits in digital search and seizure cases. The Fourth Circuit is now going en banc to review whether cell-site records are protected in Graham. The Eleventh Circuit went en banc to review the same issue in Davis, decided a few months ago. And just a few weeks ago, the Second Circuit met en banc to decide how the Fourth Amendment applies to warrant searches in Ganias. Over on the West Coast, the Ninth Circuit went en banc to decide how the border search exception applies to computers in Cotterman, decided in 2013. The Ninth also went en banc (and almost super-en-banc) to decide how warrants for digital evidence should be executed in Comprehensive Drug Testing, decided in 2010.

There were more en banc cases in the computer search and seizure field before then, too. Just off the top of my head, the Eighth Circuit went en banc to answer how the third party consent principles apply to computer searches in Hudspeth, decided in 2008; the Sixth Circuit went en banc to decide how the Fourth Amendment applies to injunctions for e-mail surveillance in Warshak, decided in 2008; and the the Ninth Circuit went en banc to determine how probable cause applies to an Internet account in Gourde, decided in 2006. There are probably others that aren't occurring to me.

I assume the en banc interest reflects judicial realization that computer search issues are important and difficult. The judges are being extra careful, which is a good thing. For Court watchers, though, it also comes with the downside of drawing out the path to Supreme Court review.