Categories
Law

Why New York’s attorney general has a case against DraftKings and FanDuel

New York Attorney General Eric Schneiderman made news on Tuesday when he ordered FanDuel and DraftKings to stop accepting wagers in the state.

Both of the daily fantasy sports sites allegedly run afoul of New York law, which prohibits bookmaking that profits from illegal gambling activity, according to Schneiderman.

The cease-and-desist order adds to the scrutiny faced recently by both leagues, which call their contests games of skill, citing as support a federal law passed in 2006 that excludes fantasy sports from the definition of the term “bet” or “wager.”

Schneiderman’s office thinks otherwise. In a letter to FanDuel (a nearly identical version went to DraftKings), Kathleen McGee, chief of the attorney general’s Internet bureau, wrote:

“Our review concludes that FanDuel’s operations constitute illegal gambling under New York law, according to which, ‘a person engages in gambling when he stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under his control or influence.’

FanDuel’s customers are clearly placing bets on events outside of their control or influence, specifically on the real-game performance of professional athletes. Further, each FanDuel wager represents a wager on a ‘contest of chance’ where winning or losing depends on numerous elements of chance to a ‘material degree.’”

The Empire State classifies as gambling games that involve a significant amount of chance. As David Apfel and Andrew Kim of the law firm Goodwin Proctor noted in a column last April, most fantasy contests involve some element of chance. The degree matters.

The federal law that excepts fantasy leagues from the definition of Internet gambling does nothing to upend state laws that prohibit, allow, or regulate gambling, leaving the leagues to navigate the variations in laws governing gambling in each state.

Currently DraftKings, FanDuel, and other fantasy sites operate in 45 states that allow games with some element of chance so long as skill predominates.

But elements of daily fantasy sports—significantly both the dailiness and fact that prizes vary with the number of participants—suggest that chance may outweigh skill in the outcome. According to Apfel and Kim:

“Many states distinguish between entry fees and bets, and have a clear law stating that paying to play in a game or contest for a prize is perfectly lawful, provided the prize has nothing to do with the number of entrants. Where a game’s prize is set in advance and does not turn on how many individuals enter the game, these states permit the game to proceed. But where prizes consist of a percentage of the entrance fees or are otherwise dependent in whole or in part on the number of participants, the laws in these states treat the otherwise benign entry fees as illegal bets or wagers.”

The frequency of the contests suggests that playing daily fantasy is less about drafting well—a skill that tests entrants’ ability to size up the skills of players they draft for their fantasy teams, an activity akin to what professional sports teams do as part of their business—than about luck.

Dustin Gouker, who covers the daily fantasy industry for Legal Sports Report, put it this way recently:

“There are thousands of contests that you can choose to enter on a variety of sites, with entry fees from 25 cents to thousands of dollars. Those buy-ins are how daily fantasy sites make money; they take a percentage of each entry fee. The biggest contests routinely pay out millions of dollars.

Does it sound like gambling, on its face? Gambling can be defined as wagering money on an uncertain outcome — like, say, a last-minute fumble that wins a player more than a million dollars. Sure sounds like daily fantasy fits the bill.”

A lot of money rides on the distinction. FanDuel and DraftKings each are valued at more than $1 billion and count among their investors the NBA, NBC Sports, Google, and Time Warner/Turner Sports (FanDuel), and Major League Baseball; Robert Kraft, who owns the New England Patriots; Jerry Jones, owner of the Dallas Cowboys, and Fox Sports (DraftKings).

Together the companies have 1.1 million active players in the Empire State, which houses 12.8% of the fantasy sports market, according to the Times. Being shut out of New York would cost the leagues a combined $35 million in revenue per year.

Then there’s the ad spending. FanDuel and DraftKings have spent more than $220 million since August, as anyone who has watched sports on TV or the Internet during that time knows. Fox Sports’ investment in DraftKings came with a promise by the fantasy site to spend $250 million on ads with the network over the next three years.

Judging by their investments, the investors thus far have concluded that benefits of backing the companies outweigh the risks. For the leagues, daily fantasy sports translate to viewers for games. Nearly two-thirds of daily fantasy players say they watch more live sports as a result of fantasy play, according to the Fantasy Sports Trade Association, an industry group.

Both DraftKings and FanDuel are pushing back against the charges by Schneiderman. DraftKings said in a statement it “will examine and vigorously pursue all legal options available” to continue operations in the Empire State, and accused the attorney general of failing to “understand our business or why daily fantasy sports are clearly a game of skill.”

“Fantasy sports is a game of skill and legal under New York State law,” echoed FanDuel.

Of course, a larger threat to the companies may come less from what happens in New York and more from what happens if other states follow Schneiderman’s lead. Last month, regulators in Nevada ordered daily fantasy sites to stop accepting wagers until they obtain a gambling license. The Department of Justice reportedly is investigating the sites, too.

Both DraftKings and FanDuel say they welcome government regulation. Officials in some states seem inclined to agree. Massachusetts Attorney General Maura Healey said on Wednesday that daily fantasy sites constitute “a form of gambling” but added that “it’s important to get beyond that.”

“Let’s focus on the issues, let’s focus on protecting consumers, and let’s set out some really robust standards for how this industry should operate, if it’s going to operate here in this state,” Healey told MassLive.

Healey’s suggestion may represent a lifeline. For those in the business of daily fantasy sports, a rule book soon may seem like the safest bet of all.

 

 

 

 

Categories
Privacy

The US and EU have three months to come to terms on trans-Atlantic data transfers

The United States and Europe have three months to work out a procedure for the transfer of personal data to the US from the EU, representatives of an independent advisory body that brings together data protection regulators from the EU’s member states announced on Saturday.

The announcement, by the EU’s Article 29 Working Party, gives guidance to businesses and other organizations that send data ranging from posts on social media to personnel records across the Atlantic following a ruling in October by the European Court of Justice (ECJ) invalidating a so-called safe harbor that had governed such transfers since 2000.

The ruling by the ECJ highlighted the cross-border flow of data and raised anew questions about the protections for privacy in a digital economy. It also upended the expectations of more than 4,000 companies, including tech giants such as Facebook, Amazon, and Google, that had certified compliance with the safe harbor to relay data from Europe to the US.

The statement by the Article 29 Working Group aim to allay fears by companies that the ECJ’s ruling might spur regulators in Europe to bring enforcement actions against companies for mishandling data transfers. In the meantime, companies can use contracts to assure privacy safeguards or adopt rules that protect the privacy of data transfers among corporate subsidiaries.

Officials on both sides of the Atlantic also say they will continue negotiations on a pact that can replace the safe harbor. If the sides cannot agree by the end of January, regulators in each of the EU’s member states will “take all necessary and appropriate action, including coordinated enforcement actions,” the Working Party said in its statement.

“Transfers of personal data are an essential element of the transatlantic relationship,” the group added. “The EU and the US are each other’s most important trading partners, and data transfers, increasingly, form an integral part of their commercial exchanges.”

The safe harbor reconciled differences in privacy protection between the US and EU, which holds that citizens have a fundamental right to privacy with respect to the processing of their data. The US regulates privacy by sector but lacks a national scheme.

The ECJ nullified the safe harbor as part of its resolution of a referral from Ireland’s high court, which had referred the matter to the ECJ following a ruling by the republic’s data protection commission (DPC) that the safe harbor preempted investigation of a claim an alleged violation.

The case began in June 2013,  when Max Schrems, then a law student at the University of Vienna, filed a complaint with the DPC charging that Facebook, which maintains its European headquarters in Dublin, sent at least some of the information he and his fellow citizens of the EU posted on the site to servers the company operates in the United States.

Schrems premised his complaint on leaks by Edward Snowden, who documented how the National Security Agency obtained information about users from Facebook, Google, and other tech firms. The surveillance, Schrems asserted, contravened the EU’s protections for personal data.

The ECJ agreed. According to the court, the National Security Agency’s ability to compel tech firms to hand over electronic communications provided by their users “must be regarded as compromising the essence of the fundamental right to respect for private life.”

In January 2014, the Obama administration and tech companies announced a deal that allows the companies to disclose information about data they are required to share with the government

Categories
Sports

Cricket All-Stars, NFL show globalization of sports

At JFK this week I passed a billboard for a financial firm that depicted a ball shaped like an American football but flatter at each end, like a rugby ball, with the pattern of a soccer ball.

The mythical mass served as metaphor for globalization, which two items in the news this week suggest is accelerating when it comes to sports.

First is a cricket match slated for Saturday at Citi Field in New York, the first of three exhibitions to be played in the U.S. this month by teams of retired all-stars. The other is an announcement by the NFL that it will play at least three games in London in each of the next five seasons after three contests there this year.

The moves mark a quickening of activity by two sports that have yet to arrive in the U.S. and U.K., respectively, on a national level. Of course, cricket has billions of fans around the world. Test matches between England and Pakistan, and between India and South Africa, are among the top events this weekend in all of sport.

The matches in the states will feature Sachin Tendulkar, who retired from the Indian national team two years ago after scoring 15,921 runs in 200 test matches, or 2,000 more than his closest rival; and Shane Warne, an Australian who retired in 2013 and ranks second of all time in wickets taken (getting a batter out) in test matches.

Tendulkar, 42, who may be the greatest batsman of all time, and Warne, 46, among the best bowlers ever, will helm opposing teams of former greats from Pakistan, India, England, South Africa, the West Indies, and Sri Lanka. “The vision is to globalize cricket,” Tendulkar told the Times. “Somewhere we need to start.”

That could be America, which in 1844 hosted the first international cricket match, between the U.S. and Canada. Today roughly 35,000 Americans play cricket, according to the United States of America Cricket Association.

The grounds at Citi Field will include a pitch that organizers of the matches have trucked from Indiana, where it was grown for the occasion by Mark Perham, the former groundsman at Eden Park, the largest stadium in New Zealand. The pitcher’s mound, which had a workout in the recently concluded World Series, will be lowered so as not to present a hazard for cricketers.

American football comes to rugby grounds

Separately, the NFL announced on Tuesday it has leased Twickenham Stadium, which normally houses rugby and recently hosted the sport’s world cup, for each of the next three seasons.

That brings to three the number of venues the league will use to host games in London between now and 2020. In addition to Twickenham, which holds 82,000 people, the league will play at least two games a year at Wembley Stadium over the coming five years.

The NFL also is slated to play two games a year at a stadium being built for Tottenham Hotspur when it is completed in 2018.

According to the league, the three games it hosted this season at Wembley averaged 83,777 fans apiece, a crowd roughly equivalent to the capacity of MetLife Stadium.

The push by the NFL to expand internationally will extend south as well. The league is expected to play at least one game in Mexico City in 2016 and says it is exploring matchups in Germany and Brazil.

Categories
Sports

The Mets finish a series and fill a season

mets_capBy the time Eric Hosmer doubled off Matt Harvey to cut the Mets’ lead in half in game five of the World Series on Sunday night, the armless chair that I occupied in games one through four had developed a groove from all the times I had winced or felt my body cringe involuntarily.

Mets fans, including this one, recoiled when closer Jeurys Familia gave up a home run to Alex Gordon that tied game one with two outs remaining in the bottom of the ninth. In what was to become a pattern, the Mets seemed to outdo the Royals. Until they didn’t.

We flinched in game four, when second baseman Daniel Murphy missed a ground ball for an error that scored the tying run, setting up Familia to blow the second of three blown saves.

On Sunday, Harvey had shut out the Royals through eight innings before insisting that manager Terry Collins allow him to start the ninth.

“Pride, meet fall,” the Daily News later scolded.

But dwelling on mistakes by the Mets overlooks the constancy that defines the Royals. It’s hard to imagine a team that competes more relentlessly, runs the bases better, or makes contact with the ball more often.

“The Royals crowd the bases with runners, and that puts on nonstop pressure,” Mets captain David Wright told reporters after game four.

Though the Mets were outmatched, both the series and the season provided plenty of euphoria. I don’t think I’ve ever loved watching pitching as much as I did watching the Mets’ young starters.

Or seeing Murphy hit seven home runs in nine postseason games, like a modern-day Babe Ruth.

It was such a joy to watch the Mets at times you didn’t want the games to end. Which is how I will remember this season.

Categories
Sports

FIFA shows what can happen when governance becomes an afterthought

The rules for international soccer fill 140 pages and prescribe, among other things, that the color of artificial playing fields must be green.

If FIFA had brought such specificity to its governing practices the governing body of the world’s most popular sport might have avoided the alleged infractions that have led to corruption probes by prosecutors in the US, the UK, and Switzerland.

The failures of governance at FIFA became clearer this weekend with publication by the Financial Times of an interview with Joseph “Sepp” Blatter, FIFA’s longtime president, whom the organization’s independent ethics committee suspended in October amid allegations that he misappropriated funds.

At some point in their existence, organizations decide on the rules and practices by which they’re directed so as to ensure their long-term success. Or they don’t, in which case they expose themselves to excess financial or business risk.

Such basic practices as term limits for executives, a mandatory retirement age, or transparent processes for setting executive compensation and electing directors all seem to have been missing from FIFA’s boardroom throughout Blatter’s tenure.

Blatter told the FT he remained president of FIFA for so long—he was elected in 1998—because of a push by a majority of the organization’s board to counter a move by UEFA, the governing body for European soccer and the most influential of soccer’s six confederations, to dismantle FIFA.

As for a payment by FIFA in 2011 of roughly $2 million to Michel Platini, the UEFA president, that Blatter has said was owed Platini pursuant to an employment agreement when Platini served as Blatter’s adviser between 1998 and 2002, Blatter reiterated to the FT what he has said previously: that there was no agreement in writing to document the outlay because Swiss law allows for oral agreements.

When Malcolm Moore, the reporter, followed up by noting that’s now how large companies act, Blatter distinguished FIFA as “a club” but refused to address why there’s no record of the payment to Platini.

Blatter’s suspension may relieve pressure on FIFA from its biggest sponsors. About a week before Blatter’s suspension, McDonald’s, Coca-Cola, Budweiser, and Visa all called on the embattled executive to step down.

Categories
Sports

NFL player Pierre Garçon sues FanDuel fantasy sports site

Pierre Garçon is charging FanDuel with illegal procedure.

The Washington Redskins receiver contends that the fantasy sports site uses his likeness and those of other NFL stars for commercial purposes without their permission, according to a suit filed on Friday by Garçon with the U.S. District Court in Maryland.

FanDuel makes millions of dollars using players’ images without compensating them, contends Garçon, who says that violates the players’ rights to publicity.

“FanDuel continues to promote and operate its daily fantasy football contests on the backs of NFL players, whose popularity and performance make the defendant commercial daily fantasy football contest possible,” Garçon alleged in court papers.

The suit adds to the controversy over sites such as FanDuel and
DraftKings, which allow contestants to assemble rosters of NFL players and compete for cash prizes based on the performance of their teams.

Though critics charge fantasy sites with hosting illegal gambling, the sites operate pursuant to a federal law passed in 2006 that authorizes simulated sports games that pay out based on the “relative knowledge and skill” of participants.

FanDuel garnered $57 million in revenue and paid out $2 billion in prizes last year, Garçon charges.

For its part, FanDuel says the suit lacks merit, citing the federal statute.

FanDuel counts the NBA and NBC Sports among its investors. Major League Baseball owns part of DraftKings. In a letter released Thursday, FanDuel’s CEO wrote that the company would back “sensible regulation.”

DraftKings and the NFL Players Association struck a deal in September that allows that site to use some of the league’s top-rated players in marketing efforts

Categories
Uncategorized

Mets in seven

Last June marked my first visit to Citi Field, where my nephew, Andrew, and I watched Matt Harvey and the Mets lose to the Giants.

I learned two things that night. First, how delightful Citi Field happens to be. (A Shake Shack just beyond center field!) And second, that the Mets needed some offense if they hoped to play into the postseason.

By the time I returned in August, the Mets had acquired Yoenis Cespedes, who may be one of the best leftfielders and hitters in baseball. The Mets looked like a different team with Cespedes, with his arm wrapped in a dayglo yellow compression sleeve, in the field and at the plate.

The Mets lost that night to the Pirates in 14 innings. But watching Cespedes get two hits in five tries and cover what seemed like the entire outfield suggested the Mets had become a different threat. Plus, I had pulled pork and corn bread.

So who wins the World Series? The Royals have the experience. But the Mets have deGrom, Syndergaard, Harvey, Murphy, Granderson, Colon, Familia, and Cespedes. And the Shack.

Mets in seven.

Categories
Sports

Yahoo stream of NFL game to mark a milestone for digital TV

For the National Football League, the action on the gridiron this Sunday may pale in comparison with what happens online.

That’s because Yahoo will stream a game between the Buffalo Bills and the Jacksonville Jaguars in London live, for free. The webcast from Wembley Stadium will mark the first time an NFL game has aired primarily via the Internet and a milestone in the evolution of online TV.

Yahoo, which reportedly paid $20 million for the rights to the game, will stream a live feed of the game produced by CBS. Other than in Buffalo and Jacksonville, where affiliates of the network will televise the matchup, the game will be available exclusively online.

Roughly 30 companies, including Microsoft, Yahoo, Snickers and Toyota, are slated to advertise during the webcast, which Yahoo CEO Marissa Mayer has called a “historic opportunity.”

The ability to watch live telecasts of sports typically requires a subscription to pay TV.

Experts say they’ll be watching Yahoo’s webcast to see, among other things, the size of the audience, its age and demographics, and whether viewers watch via mobile devices, TVs or desktops.

Neither the NFL nor Yahoo have said what size audience they anticipate for Sunday’s game. A game between the New York Jets and Miami Dolphins in London on Oct. 4. drew nine million viewers on CBS, compared with the roughly 20 million viewers who tune to network telecasts of NFL games played on Sunday afternoons.

“Broadband and Internet distribution has gotten to a critical place where it can support an NFL game,” Brian Rolapp, the NFL’s executive vice president for media, told Adweek. “One of the reasons we’re there is to see if this could be viable distribution for more than one game.”

“We’ll know a lot more on [Monday],” he added.

Categories
Finance

The New Deal in three charts

With a fourth presidential debate slated for Wednesday, 20 White House hopefuls in the hunt for their party’s nomination, and fall foliage here in the East near peak, last Friday seemed like a perfect time to visit the Franklin D. Roosevelt Presidential Library and Museum in Hyde Park, New York.

From Harlem, I boarded a Metro North train that followed the Hudson River to Poughkeepsie, where a taxi took me to the library, about 10 minutes away. There I spent the afternoon in the museum amid exhibits that chronicle the nation’s 32nd president, whose four terms spanned the depths of the Great Depression to within a month of Allied victory in World War II.

Stock price indexes, 1928-1929 (Photo by Brian Browdie, courtesy Franklin D. Roosevelt Presidential Library and Museum)
Stock price indexes, 1928-1929 (Photo by Brian Browdie, courtesy of the Franklin D. Roosevelt Presidential Library and Museum)

The exhibits include audio excerpts from many of FDR’s 30 national radio addresses. As I listened to some of those “fireside chats,” I was struck by the contrast between the way FDR addressed the public and much of what passes for political discourse nowadays.

By the time FDR took the oath of office on March 4, 1933, nearly 13 million Americans—about one quarter of the civilian labor force—were out of work and nearly every bank was closed.

Three days into his term, as failures of financial institutions swelled, FDR ordered a week-long suspension of all banking transactions. On March 12, he took to the airwaves, to tell the American people about the bank holiday he had ordered.

After explaining a series of actions underway by the government to recapitalize and reopen banks, FDR called on Americans to resist “being stampeded by rumors or guesses” and to have confidence in the government’s ability to carry out the plan.

“Let us unite in banishing fear,” he added. “We have provided the machinery to restore our financial system; it is up to you to support and make it work. It is your problem no less than it is mine. Together we cannot fail.”

FDR challenged the American people. The seizing up of the banks wasn’t just the government’s or the president’s problem, he told them. It’s your problem, too.

Of course, he was correct. If you are unable to withdraw money from your bank account because the bank ran out of currency, you have a problem.

Photo by Brian Browdie (Courtesy Franklin D. Roosevelt Presidential Library and Museum)
Photo by Brian Browdie (Courtesy of the Franklin D. Roosevelt Presidential Library and Museum)

Still, it’s not as if FDR didn’t have opponents who had their own views on how to fix the economy. Or who hesitated to blast the president’s plan.

Business charged that the New Deal—the series of steps by FDR to end the Great Depression—gave too much power to trade unions. Republicans attacked Roosevelt for increasing the deficit and extending federal power.

Photo by Brian Browdie (Courtesy Franklin D. Roosevelt Presidential Library and Museum)
Photo by Brian Browdie (Courtesy of the Franklin D. Roosevelt Presidential Library and Museum)

From the left, FDR’s fellow Democrat, Senator Huey Long of Louisiana, would later propose to cap personal fortunes at $50 million and redistribute the wealth to guarantee each household a grant of $5,000 and a minimum yearly income of between $2,000 and $3,000 (nearly $54,000 in today’s dollars).

FDR may have had an excuse to pander. Yet he reminded us that we have a stake in, and an obligation to ensure, our country’s well-being.

Categories
Privacy

Cell site records privacy comes to the Supreme Court

This fall the Supreme Court will decide whether to hear an appeal that addresses the privacy each of us has in information our cellphones exchange with the network that reveals our movements over time.

The matter comes to the Court in an appeal by Quartavious Davis, an Alabama man who was convicted in 2011 of a string of seven armed robberies in Miami, Florida that netted him a sentence of 162 years in prison. Federal prosecutors tied Davis to the heists—which included robbing a pharmacy, an auto parts store, a beauty salon, and a fast food restaurant—in part from transmissions between his cellphone and the towers it transmitted to as he moved about town.

Prosecutors obtained the cell site data pursuant to an order from a federal magistrate judge that authorized them to review Davis’ phone location for a period of 67 days in September and October of 2010 that straddled the heists.

According to court papers, the records, which prosecutors obtained from MetroPCS, Davis’ service provider, revealed 11,606 points of information about his whereabouts, including calls he allegedly placed to and received from co-conspirators.

At trial, Davis moved to exclude the location information, asserting that prosecutors obtained it without a search warrant. Prosecutors relied instead on the Stored Communications Act, a federal law that authorizes law enforcement to obtain records a magistrate deems relevant to an ongoing criminal investigation.

The problem, Davis asserts, is that the government’s obtaining the location data constituted a search within the meaning of the Fourth Amendment. That required prosecutors to obtain a warrant supported by probable cause, which means prosecutors would have had to demonstrate to a judge a reasonable basis for believing a crime had been committed.

The distinction matters to Davis, who was sentenced at age 22 and faces the rest of his live in prison, but also to anyone who uses a cellphone, which is to say nearly all of us. Ninety-two percent of American adults own a cellphone or smartphone, according to a study published in August by the Pew Research Center. And 90 percent of cellphone owners say they frequently carry their phone with them.

Cell site information reveals an abundance of information about us. As Justice Sotomayor wrote in 2012 in a case that found the government’s attaching a GPS device to a vehicle for 28 days to be a search within the meaning of the Fourth Amendment, “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.”

Davis’ appeal presents the Court with an opportunity to revisit the so-called third-party doctrine, which holds that you lack a reasonable expectation of privacy in information you disclose voluntarily to third parties. The approach, which traditionally applied to things like a suspect’s bank records, makes less sense in an age in which, as Justice Sotomayor noted in the concurrence cited above, “people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

The Court has recognized as much. Last year the justices ruled unanimously that police may not, without a warrant, search information on a cellphone from someone who has been arrested. Writing for the Court, Justice Roberts noted:

“Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cellphone, with all that it contains, who is the exception. According to one poll, nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower.”

In Davis’ case, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit ruled that the government violated his rights under the Fourth Amendment by obtaining the cell site location records without a warrant. Still, the panel sided with the trial judge and upheld the conviction because prosecutors relied in good faith on the magistrate’s order.

By a vote of 6 to 5, the entire Eleventh Circuit later reversed the panel, holding that the government did not violate the Fourth Amendment when it obtained the location data because Davis had no reasonable expectation of privacy in records held by his service provider.

The ruling set up a split among federal appeals courts. The U.S. Court of Appeals for the 4th Circuit ruled in August that the government’s accessing cell site data constitutes a search under the Fourth Amendment. That makes the case ripe for review by the Supreme Court, Davis contends. According to the Electronic Frontier Foundation, which filed a friend-of-the-court brief urging the Court to decide the case:

“Given the prevalence of cellphones and smartphones, and the increasing number of law enforcement requests for this sensitive information, this case thus presents a question of compelling national importance. The number of Americans promised that [cell site location information] remains private and accessible to law enforcement only with the protections of a search warrant is increasing. Yet, this legal protection is not uniform, and the federal courts in particular have issued conflicting opinions on the topic, leaving the public and law enforcement in limbo.”

The number of requests by law enforcement for location data is rising. According to figures cited by EFF, AT&T projects it will receive nearly 76,000 requests for cell site location information this year from law enforcement, up 19% from a year earlier and just under the number of such requests received in 2012. Verizon is projecting a 55% increase in the number of so-called cell tower dumps, a majority of which, EFF observes, occur without a warrant.

Note that Davis’ appeal ties to historical location data. Several states already require police to obtain a warrant before tracking a cellphone in real time. This chart from 2011 will give you a sense of how long your cellular provider retains a record of towers used by your phone.

For the Court to take up Davis’ case, at least four justices will have to vote to hear the appeal. In addition to an opportunity to unify the circuits, the justices could use the appeal to clarify the standard for assessing the government’s conduct. Orin Kerr, a professor of law at George Washington University, says the Eleventh Circuit’s reasoning also may make the case worthy of review. As Kerr wrote in The Washington Post following the appeals court decision:

“Instead of the… rule of a warrant, the court begins with general balancing. It’s important to catch criminals, the court reasons, and the statute has some good protections given that this wasn’t such an invasive practice. So on the whole the government’s conduct based on reasonable suspicion seems reasonable and therefore constitutional.

This alternative holding is a major development, I think. It’s at odds with the usual rule that a criminal search requires a warrant, and instead replaces it with a totality of the circumstances inquiry into whether the criminal search was the kind of thing that we would generally say is good or would generally say is bad. There’s not only no warrant requirement, there’s no probable cause requirement: It’s just a free-floating reasonableness inquiry.”

According to the Reporters Committee for Freedom of the Press, allowing warrantless access to cell site data also undermines freedoms guaranteed by the First Amendment. “In part because location data can be so revelatory, journalists frequently go to great lengths to ensure that the locations where they meet their sources are kept private, and that their communications are confidential,” the group writes in a friend-of-the-court brief.

From precedent, we know the justices are paying attention to the privacy implications of technology. In that regard, they seem likely to read a concurrence by Judge Robin Rosenbaum, a member of the Eleventh Circuit who, despite finding the search of Davis’ location data reasonable under the Stored Communications Act, expressed concern.

“In our time, unless a person is willing to live ‘off the grid,’ it is nearly impossible to avoid disclosing the most personal of information to third-party service providers on a constant basis, just to navigate daily life,” Rosenbaum wrote. “And the thought that the government should be able to access such information without the basic protection that a warrant offers is nothing less than chilling.”