Warrantless location tracking

New York University Law Review

Volumn 83, Issue 4, 2008, Pages 1324-1352

  Samuel, Ian James ^a  

^a NEW YORK UNIVERSITY   (United States)

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EID: 56149107754     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (152)

1. See, e.g., Kyllo v. United States, 533 U.S. 27, 40 (2001) (holding use of thermal imaging device aimed at private home from public street constitutes "search" within meaning of Fourth Amendment).
2. Diana Walsh & Stacy Finz, The Peterson Trial; Defendant Lied Often, Recorded Calls Show; Supporters Misled About Whereabouts, S.F. CHRON., Aug. 26, 2004, at B1, available at http://www.sfgate.com/cgi-bin/ article.cgi?f=/c/a/2004/08/26/BAG458EJ3S1.DTL.
3. Laurie Thomas Lee, Can Police Track Your Wireless Calls? Call Location Information and Privacy Law, 21 CARDOZO ARTS & ENT. L.J. 381, 381 (2003) (discussing kidnapping of Greek magnate).
4. See, e.g., Girl, 5, Found Safe as Man Steals Car, ROCKY MTN. NEWS (Colo.), Apr. 22, 2004, at 18A (reporting use of cell phone to locate car stolen with child inside).
5. Many such services are available. For a representative example, consider Accu-Tracking, which bills itself as the "[tjracking [s]ervice for [e]veryone." AccuTracking, http://www.accutracking.com (last visited Mar. 8, 2008).
6. See In re Application of the United States for an Order (1) Authorizing the Use of a Pen Register & a Trap & Trace Device & (2) Authorizing Release of Subscriber Info. &/or Cell Site Info. (Orenstein Opinion II), 396 F. Supp. 2d 294, 318 n.21 (E.D.N.Y. 2005) (referring to cell phone tracking as "routine" technique for which judicial authorization requests have been drafted on "forms that have been in use for years").
7. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 193 (1890).
8. Compare In re Application of the United States for an Order Authorizing the Disclosure of Prospective Cell Site Info. (Adelman Opinion), No. 06-MISC-004, 2006 WL 2871743, at *1, *7 (E.D. Wis. Oct. 6, 2006) (requiring probable cause and warrant for such tracking), and In re Application of the United States for an Order: (1) Authorizing the Installation & Use of a Pen Register & Trap & Trace Device; (2) Authorizing the Release of Subscriber & Other Info.; & (3) Authorizing the Disclosure of Location-Based Servs. (Lee Opinion), Nos. 1:06-MC-6, 1:06-MC-7, 2006 WL 1876847, at *1, *5 (N.D. Ind. July 5, 2006) (same), with In re Application of the United States for an Order for Prospective Cell Site Location Info, on a Certain Cellular Tel. (Kaplan Opinion), 460 F. Supp. 2d 448, 450 (S.D.N.Y. 2006) (permitting such searches absent probable cause), and In re Application of the United States for an Order: (1) Authorizing the Installation & Use of a Pen Register & Trap & Trace Device, & (2) Authorizing Release of Subscriber & Other Info. (Rosenthal Opinion), 433 F. Supp. 2d 804, 805-06 (S.D. Tex. 2006) (same).
9. A complete list of published magistrate opinions on this topic would exhaust the space available for discussion of them; only a representative few need be considered. See, e.g., In re Application of the United States for an Order Authorizing (1) Installation & Use of a Pen Register & Trap & Trace Device or Process, (2) Access to Customer Records, & (3) Cell Phone Tracking (Smith Opinion), 441 F. Supp. 2d 816, 836-37 (S.D. Tex. 2006) (concluding that less than probable cause showing for cell phone location tracking might violate Fourth Amendment);
10. In re Application of the United States for an Order for Disclosure of Telecomms. Records & Authorizing the Use of a Pen Register & Trap & Trace (Gorenstein Opinion), 405 F. Supp. 2d 435, 448-49 (S.D.N.Y. 2005) (allowing such tracking without probable cause);
11. Orenstein Opinion II, 3% F. Supp. 2d at 295, 327 (E.D.N.Y. 2005) (requiring probable cause and warrant for such tracking);
12. In re Application of the United States for an Order (1) Authorizing the Use of a Pen Register & a Trap & Trace Device & (2) Authorizing Release of Subscriber Info. &/or Cell Site Info. 384 F. Supp. 2d 562, 564 (E.D.N.Y. 2005) (same, but on different grounds).
13. For an overview of the case law available on cell phone location tracking, see Deborah F. Buckman, Annotation, Allowable Use of Federal Pen Register and Trap and Trace Device to Trace Cell Phones and Internet Use, 15 A.L.R. FED. 2o 537, 547-61 (2007) (collecting published cases).
14. Julia Layton et al., How Cell Phones Work, How STUFF WORKS, http://electronics.howstuffworks.com/cell-phone.htm/printable (last visited Mar. 8, 2008).
15. Id.
16. Id.
17. See Kaplan Opinion, 460 F. Supp. 2d at 450 (describing every cell phone as "periodically transmit[ting] a unique identification number to register its presence and location in the network").
18. For example, Apple's iPhone relies in part on this technique to show its user her location on the map software. See John Markoff, Jobs Returns to His Mac Roots with a Thin, Ultralight Laptop, N.Y. TIMES, Jan. 16, 2008, at C4 (discussing map feature's introduction at 2008 Macworld Expo).
19. Kaplan Opinion, 460 F. Supp. 2d at 451 & n.3;
20. see also JOHN CLAYTON TRACY, PLANE SURVEYING: A TEXT-BOOK AND POCKET MANUAL 191-200 (1906) (describing triangulation in another context).
21. See, e.g., Kaplan Opinion, 460 F. Supp. 2d at 451 (referring to location information as "cell site" data).
22. Marshall Brain & Jeff Tyson, How Buying a Cell Phone Works, HOW STUFF WORKS, http://electronics.howstuffworks. com/cell-phone-buying6.htm (last accessed Mar. 8, 2008).
23. 18 U.S.C. §§ 3121-3127 (2000).
24. United States v. N.Y. Tel. Co., 434 U.S. 159, 161 n.1 (1977).
25. See In re Application of the United States for an Order (1) Authorizing the Use of a Pen Register & a Trap & Trace Device & (2) Authorizing Release of Subscriber Info. &/or Cell Site Info. (Orenstein Opinion II), 396 F. Supp. 2d 294, 318 (E.D.N.Y. 2005) (noting Patriot Act's expansion of pen/trap definitions).
26. These requirements are set out generally in 18 U.S.C. § 3123(b) (2000). What exactly the statutory requirements are for this type of pen register-particularly, what evidentiary showing must be made - is the topic of this Note.
27. 18 U.S.C. § 3127(3) (2000).
28. See In re Application of the United States for an Order (1) Authorizing the Use of a Pen Register & a Trap & Trace Device & (2) Authorizing Release of Subscriber Info. &/or Cell Site Info. (Orenstein Opinion I), 384 F. Supp. 2d 562, 566 (E.D.N.Y. 2005) (describing absence of law on topic despite magistrates in other jurisdictions confronting issue).
29. Id.
30. Id. (citing Henslee v. Union Planters Nat'1 Bank & Trust Co., 335 U.S. 595, 600 (1949) (Frankfurter, J., dissenting) ("Wisdom too often never comes, and so one ought not to reject it merely because it comes late.")).
31. Id. at 564 (cell site data "is not information that the government may lawfully obtain absent a showing of probable cause").
32. Cf. In re Application of the United States for an Order (1) Authorizing the Use of a Pen Register & a Trap & Trace Device & (2) Authorizing Release of Subscriber Info. &/or Cell Site Info. (Orenstein Opinion 11), 396 F. Supp. 2d 294, 318 n.21 (E.D.N.Y. 2005) (referring to this technique as "routine," and having been submitted on "forms that have been in use for years").
33. See In re Application of the United States for an Order Authorizing (1) Installation & Use of a Pen Register & Trap & Trace Device or Process, (2) Access to Customer Records, & (3) Cell Phone Tracking (Smith Opinion), 441 F. Supp. 2d 816, 836-37 (S.D. Tex. 2006).
34. See Orenstein Opinion II, 396 F. Supp. 2d at 294.
35. See supra note 8.
36. In re Application of the United States for an Order for Disclosure of Telecomms. Records & Authorizing the Use of a Pen Register & Trap & Trace (Gorenstein Opinion), 405 F. Supp. 2d 435 (S.D.N.Y. 2005). This prompted amicus curiae the Electronic Frontier Foundation to remark on its website: "What a difference a G makes." Electronic Frontier Foundation: DeepLinks, Bad Ruling on Cell Phone Tracking, http://www.eff.org/ deep-links/2005/12/bad-ruling-cell-phone-tracking-what-difference-g-makes (last visited Mar. 8, 2008).
37. The magistrate judges have encouraged the government to seek review by a court of appeals. See, e.g., In re Application of the United States for an Order (1) Authorizing the Use of a Pen Register & a Trap & Trace Device & (2) Authorizing Release of Subscriber Info. &/or Cell Site Info. (Orenstein Opinion I), 384 F. Supp. 2d 562, 566 (E.D.N.Y. 2005) (requesting appellate resolution of matter).
38. See Id. (stating that Judge Orenstein's research "failed to reveal any federal case law directly on point").
39. On the continuum of surveillance process, see Orin S. Kerr, Internet Surveillance Law After the USA Patriot Act: The Big Brother That Isn't, 97 NW. U. L. REV. 607, 620-21 (2003), available at http://ssrn.com/abstract=317501.
40. 18 U.S.C. §§ 2510-2522 (2000).
41. § 2518.
42. This chart owes much to Kerr, supra note 33, at 620-21.
43. 18 U.S.C. § 3123(a).
44. 18 U.S.C. § 2703(d).
45. FED. R. CRIM. P. 41(d)(1).
46. 18 U.S.C. § 2518.
47. Kerr, supra note 33, at 611.
48. Id.
49. 18 U.S.C. §§ 2510-2522 (2000).
50. § 2511(1)(a).
51. § 2515.
52. § 2510(4).
53. § 2510(8).
54. § 2518 (describing super-warrant requirements for intercepting wire, oral, and electronic communications).
55. 18 U.S.C. § 3127(3) (2000).
56. See 18 U.S.C. § 3123(a) (requiring law enforcement to certify that pen register information "likely to be obtained by such installation and use is relevant to an ongoing criminal investigation").
57. I am grateful to Professor Kerr for raising this objection.
58. In re Application of the United States for an Order Authorizing the Installation & Use of a Pen Register Device, a Trap & Trace Device, & for Geographic Location Info. (McGiverin Opinion), 497 F. Supp. 2d 301, 304 (D.P.R. 2007)
59. (quoting In re Application of the United States for an Order Authorizing the Disclosure of Prospective Cell Site Info. (Adelman Opinion), No. 06-MISC-004, 2006 WL 2871743, at *1 (E.D. Wis. Oct. 6, 2006)).
60. The Pen Register Act states that "no person may install or use a pen register or a trap and trace device without first obtaining a court order under section 3123 of this title." 18 U.S.C. § 3121(a).
61. See, e.g., In re Application of the United States for an Order for Disclosure of Telecomms. Records & Authorizing the Use of a Pen Register & Trap & Trace (Gorenstein Opinion), 405 F. Supp. 2d 435, 438-39 (S.D.N.Y. 2005) (noting that under Pen Register Act, "the term 'signaling information' includes information on the location of cell site towers used by a cellular telephone").
62. 47 U.S.C. § 1002(a)(2) (2000). The provision states: "[W]ith regard to information acquired solely pursuant to the authority for pen registers and trap and trace devices . . . call-identifying information shall not include any information that may disclose the physical location of the subscriber (except to the extent that the location may be determined from the telephone number)." Id.
63. Gorenstein Opinion, 405 F. Supp. 2d at 442.
64. The rule against surplusage is a canon of statutory construction that discourages interpretations of a statute that render some words meaningless. See, e.g., United States v. Menasche, 348 U.S. 528, 538-39 (1955).
65. In re Application of the United States for an Order for Prospective Cell Site Location Info, on a Certain Cellular Tel. (Kaplan Opinion), 460 F. Supp. 2d 448, 458 (S.D.N.Y. 2006).
66. See In re Application of the United States for an Order Authorizing the Installation & Use of a Pen Register Device, a Trap & Trace Device, & for Geographic Location Info. (McGiverin Opinion), 497 F. Supp. 2d 301, 305 (D.P.R. 2007) (referring to theory by this name).
67. 18 U.S.C. §§ 2701-2711 (2000).
68. See, e.g., In re Application of the United States for an Order (1) Authorizing the Use of a Pen Register & a Trap & Trace Device & (2) Authorizing Release of Subscriber Info. &/or Cell Site Info. (Orenstein Opinion 11), 396 F. Supp. 2d 294, 313-14 (E.D.N.Y. 2005).
69. See FED. R. CRIM. P. 41(d)(1) (requiring judge to "issue the warrant" after receiving affidavit from law enforcement officer "if there is probable cause to search for and seize a person or property or to install and use a tracking device").
70. The Electronic Frontier Foundation is one example of such an advocacy group. See Brief for the Electronic Frontier Foundation as Amicus Curiae Opposing the Government at 6-9, In re Application for Pen Register & Trap & Trace Device with Cell Site Location Auth., No. 05-1093 (E.D.N.Y. Sept. 23, 2005) (arguing that only warrant satisfying Title III's requirements can authorize cell phone tracking).
71. 18 U.S.C. § 2703(a).
72. See supra text accompanying note 3.
73. The particular magistrate's tolerance for this form of wordplay often decides the case. Cf. In re Application of the United States for an Order Authorizing the Installation & Use of a Pen Register Device, a Trap & Trace Device, & for Geographic Location Info. (McGiverin Opinion), 497 F. Supp. 2d 301, 309 n.3 (D.P.R. 2007) ("[T]he fact that there may be momentary storage of cell site data before disclosure to the government does not address the SCA's lack of procedural safeguards.").
74. See, e.g.. In re Application of the United States for an Order for Disclosure of Telecomms. Records & Authorizing the Use of a Pen Register & Trap & Trace (Gorenstein Opinion), 405 F. Supp. 2d 435, 446-47 (S.D.N.Y. 2005) (holding that cell site information "is transmitted to the Government only after it has come into the possession of the cellular telephone provider in the form of a record" and that SCA is appropriate statutory partner with Pen Register Act under CALEA).
75. FED. R. CRIM. P. 41(d)(1).
76. See supra Part II.A and accompanying chart.
77. See supra notes 37-47 and accompanying text.
78. Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 345-46 (1936) (Brandeis, J., concurring).
79. NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 510 (1979) (Brennan, J., dissenting).
80. Almendarez-Torres v. United States, 523 U.S. 224, 250 (1998) (Scalia, J., dissenting).
81. Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). Avoidance of conflict with the "law of nations" referred to in this passage has been later used by the Court in constitutional avoidance cases. See Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988).
82. WILLIAM N. ESKRIDGE. JR. ET AL., CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 907 (4th ed. 2007).
83. Almendarez-Torres, 523 U.S. at 250 (Scalia, J., dissenting) (quoting United States ex rel. Att'y Gen. v. Del. & Hudson Co., 213 U.S. 366, 408 (1909)).
84. Cf. id. at 260 ("[A]ll that I need to establish ... is that on the basis of our jurisprudence to date, the answer to the constitutional question is not clear. It is the Court's burden, on the other hand, to establish that its constitutional answer shines forth clearly from our cases.").
85. In this Note, I focus on the Fourth Amendment in order to treat the issue in depth; the reader should not infer from this that there could not be other serious constitutional concerns. There is a colorable claim that cell phone tracking might restrict movement between states, for example. Cf. Kent v. Dulles, 357 U.S. 116, 126 (1958) (describing freedom of movement as "basic in our scheme of values"); Paul v. Virginia, 75 U.S. 168, 180 (1868), overruled in part by United States v. Se. Underwriters Ass'n, 322 U.S. 533 (1944) (holding that Constitution ensures free egress and ingress between states).
86. U.S. CONST, amend. IV.
87. In re Application of the United States for an Order Authorizing the Disclosure of Prospective Cell Site Info. (Adelman Opinion), No. 06-MISC-004, 2006 WL 2871743, at *5 n.6 (E.D. Wis. Oct. 6, 2006) (noting it is "doubtful that the government's use of cell site information to track a suspect implicates the Fourth Amendment").
88. U.S. CONST, amend. IV.
89. See infra Part III.B.1.iii (discussing Fourth Amendment beeper cases).
90. OXFORD ENGLISH DICTIONARY 804 (2d ed. 1989) (defining "search" as "examination or scrutiny for the purpose of finding a person or thing").
91. 389 U.S. 347 (1967).
92. Id. at 361 (Harlan, J., concurring).
93. Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 384 (1974). Though beyond the scope of this Note, Professor Amsterdam's objection seems irrefutable.
94. See Minnesota v. Carter, 525 U.S. 83, 97 (1998) (Scalia, J., concurring) ("[Katz's 'reasonable expectations'] bear an uncanny resemblance to those expectations of privacy that this Court considers reasonable.").
95. 442 U.S. 735 (1979).
96. Id. at 745-46.
97. Id. at 737.
98. Id. at 742, 745-46 (emphasis added).
99. See id. at 745-46 ("We therefore conclude that petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and that, even if he did, his expectation was not 'legitimate.' The installation and use of a pen register, consequently, was not a 'search,' and no warrant was required.").
100. Id. at 742.
101. See, e.g., Orin Kerr, No Fourth Amendment Protection in E-mail Addresses, IP Addresses, Ninth Circuit Holds, THE VOLOKH CONSPIRACY, http://www.volokh.com/posts/chain_1184933802.shtml (July 6, 2007, 18:27 EST). It is also generally agreed that the content of those messages is protected except upon procurement of a Title III order. Id.
102. 495 F.3d 1041 (9th Cir. 2007).
103. Id. at 1048-50.
104. See supra Part II.A.
105. Smith, 442 U.S. at 743-44.
106. See, e.g., United States v. Miller, 425 U.S. 435, 442-43 (1976) (holding that information voluntarily given to banks is not protected by Fourth Amendment); Couch v. United States, 409 U.S. 322, 335-36 (1973) (holding that information knowingly given to accountant is not constitutionally protected); United States v. White, 401 U.S. 745, 752 (1971) (holding that conversations voluntarily transmitted by one party to police are not constitutionally protected); Hoffa v. United States, 385 U.S. 293, 302-03 (1966) (holding that conversation recounted to police by government informant is not constitutionally protected); Lopez v. United States, 373 U.S. 427, 438 (1963) (holding that conversations voluntarily recounted by one party to police are not constitutionally protected).
107. 425 U.S. at 442.
108. Id. at 443 (citation omitted).
109. See, e.g., Smith v. Maryland, 442 U.S. 735, 746-47 (1979) (Stewart, J., dissenting); Katz v. United States, 389 U.S. 347, 353 (1967) (holding that wiretapping public phone is Fourth Amendment search) ("The telephone conversation itself must be electronically transmitted .. . and may be recorded or overheard .... Yet we have squarely held that the user of even a public telephone is entitled 'to assume that the words he utters into the mouthpiece will not be broadcast to the world.'"
110. (quoting Katz, 389 U.S. at 352)).
111. Smith, 442 U.S. at 746-47 (1979)
112. (Stewart, J., dissenting) (quoting Katz, 389 U.S. at 352).
113. 460 U.S. 276 (1983).
114. 468 U.S. 705 (1984).
115. In Knotts, the Court held that it was not a search to use a beeper since it revealed only information that someone could observe from the public. "[H]e voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property." 460 U.S. at 281-82. In Karo, when the beeper was used to track items on private property that police could not have observed from outside the house, the Court held that it was a Fourth Amendment search. 468 U.S. at 715.
116. Kyllo v. United States, 533 U.S. 27, 38 (2001) (discussing intimate details that can be revealed by certain intrusive searches).
117. United States v. Berry, 300 F. Supp. 2d 366, 368 (D. Md. 2004).
118. Id. Chief Judge Legg was discussing GPS sensors placed on a car, but the underlying issues are the same.
119. U.S. CONST. amend. IV.
120. Kyllo, 533 U.S. at 42-43 (Stevens, J., dissenting).
121. Id. at 35 n.2 (majority opinion) (citation omitted).
122. Cf. United States v. Chadwick, 433 U.S. 1, 11 (1977) (holding that search warrant is required to search footlocker even if police have probable cause to believe that it contains contraband).
123. Kyllo, 533 U.S. at 35 n.2.
124. Doubters of this proposition should recall that, with a warrant, the police can do far more intrusive things than simply monitor a person's location. For example, with a warrant, the police could strip search a child. Doe v. Groody, 361 F.3d 232, 238 (3d Cir. 2004) (suggesting in dicta that search warrant could authorize said search).
125. Katz v. United States, 389 U.S. 347, 357 (1967) (footnote omitted).
126. Mincey v. Arizona, 437 U.S. 385, 390 (1978).
127. The most vocal critic of the current approach is Justice Scalia. According to him, the Court has "lurched back and forth between imposing a categorical warrant requirement and looking to reasonableness alone." California v. Acevedo, 500 U.S. 565, 582 (1991) (Scalia, J., concurring). The result is that the warrant requirement has become "so riddled with exceptions that it [is] basically unrecognizable." Id.
128. United States v. Watson, 423 U.S. 411, 423-24 (1976).
129. Terry v. Ohio, 392 U.S. 1, 27 (1968).
130. United States v. Robinson, 414 U.S. 218, 235 (1973).
131. See Warden v. Hayden, 387 U.S. 294, 298-99 (1967) ("The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.").
132. Of course, it is always possible that a court might decide to engage in Fourth Amendment "reasonableness" analysis and forgo the use of its ordinary presumption of unreasonableness. Cf. Terry, 392 U.S. at 20-27 (applying "reasonableness" analysis to uphold warrantless stop-and-frisk searches). However, the "reasonableness" inquiry would itself be a major and novel question of constitutional law - exactly the sort of thing the canon of constitutional doubt counsels against except when unavoidable. Thus, the outcome of a free-floating, no-presumptions inquiry into the reasonableness of cell phone tracking is beyond the scope of this Note; it's only necessary that the reader believe such an inquiry would constitute a major question of constitutional law.
133. See FED. R. CRIM. P. 41(d)(1); see also supra note 64 and accompanying text (describing contents and requirements of Federal Rule of Criminal Procedure 41).
134. Though the Smith Opinion mentions the issue in passing, it is not essential to the holding. In re Application of the United States for an Order Authorizing (1) Installation & Use of a Pen Register & Trap & Trace Device or Process, (2) Access to Customer Records, & (3) Cell Phone Tracking (Smith Opinion), 441 F. Supp. 2d 816, 836-37 (S.D. Tex. 2006).
135. See, e.g., Kevin McLaughlin, Note, The Fourth Amendment and Cell Phone Location Tracking: Where Are We?, 29 HASTINGS COMM. & ENT. L.J. 421 (2007) (arguing for a major decision of constitutional law without mentioning avoidance doctrine).
136. RICHARD A. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 285 (1985).
137. Henry J. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in BENCHMARKS 196, 211 (1967).
138. Frederick Schauer, Ashwander Revisited, 1995 SUP. CR. REV. 71, 74.
139. For a general discussion of avoidance's place in textualism generally, see John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1, 119-26 (2001).
140. Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 481 (Kennedy, J., concurring).
141. See, e.g., INS v. St. Cyr, 533 U.S. 289, 299-300 (2001) (invoking constitutional avoidance doctrine).
142. United States v. Cong. of Indus. Orgs., 335 U.S. 106, 124 (1948) (Frankfurter, J., concurring).
143. 5 U.S. (1 Cranch) 137 (1803).
144. Hylton v. United States, 3 U.S. (3 Dall.) 171, 175 (1796).
145. Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988).
146. Eldred v. Reno, 239 F.3d 372, 378 (D.C. Cir. 2001).
147. Ex porte Randolph, 20 F. Cas. 242, 254 (C.C.D. Va. 1833) (opinion by Marshall, C.J.).
148. Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L.J. 1346, 1353 (2006).
149. E.g., WILLIAM BLACKSTONE, 4 C OMMENTARIES *255-77 (examining criminal procedure in chapter entitled "Of Courts of a Criminal Jurisdiction").
150. Warren & Brandeis, supra note 7, at 193.
151. David Pogue, Cellphones That Track the Kids, N.Y. TIMES, Dec. 21, 2006, at C1, available at http://www.nytimes.com/2006/12/21/ technology/21pogue.html.
152. Ryan Kim, Find Friends by Cell Phone, S.F. CHRON., Nov. 14, 2006, at C1, available at http://sfgate.com/cgi-bin/article.cgi?/f=c/ a/2006/11/14/BUGMMMClKEl.DTL.