The NSA says it ‘obviously’ can track locations without a warrant. That’s not so obvious.

[Commentary] In conversations with The Washington Post over Barton Gellman and Ashkan Soltani's recent story on cellphone location tracking, an intelligence agency lawyer told Gellman, "obviously there is no Fourth Amendment expectation in communications metadata.” But some experts say it's far from obvious that the 1979 Supreme Court case, Smith v. Maryland, on which the Administration bases this view gives the government unfettered power to scoop up Americans' cellphone location data.

That Supreme Court case was a very different case in a very different time than the intelligence activities laid bare by documents from former NSA contractor Edward Snowden. Michelle Richardson, an attorney at the American Civil Liberties Union, points out that the type of metadata collected in 1979 was much more limited in scope than what telecom companies have access to now. This is particularly true on the issue of location information, she argues. "It reflects who you know, what you do -- it can reflect if you attend a certain church, or a political rally, or AA meetings." So back then, location tracking was a much more onerous affair, requiring so many resources it was only used for the most serious investigations. Given these new capabilities, Richardson calls Smith v. Maryland "way out of date," adding "it was before cellphones, before the Internet, before services that collect intensely personal information." Until the Supreme Court hears a case applying Smith v. Maryland to location data, we won't know if the Constitution allows the government to obtain this kind of information without a warrant.