I guess my viewpoint is that I am not sure that it is clear what the law is. Smith seems pretty clear as does California Bankers Association, and when you take these two cases together, then dragnet surveillance would not be under different rules and Smith would govern this.
However I am not certain that this is the only way to look at the existing precedents. If you look at Rhenquist's majority opinion in Knotts, for example, he is quite clear that whether widescale tracking is under the same rules is not a question the court was deciding. Knotts is important for the Verizon order because I think one can argue that beeper cases are closer to cell site location information (also disclosed under the Verizon order) than they are to pen registers.
Since Knotts leaves explicitly open the question of whether widespread location tracking is under different rules, I think it is premature to just say that Smith and California Bankers Association control on their face. Additionally it is anything but clear what the Supreme Court said about this in Jones v. United States because it isn't clear how to count the votes. I would argue that Sotomayor and Alito do not control, but the fact that you have 5 justices clearly edgy about such things in their separate opinions (Alito concurring in judgement joined by Breyer, Ginsberg, and Kagan, Sotomayor concurring with Scalia but endorsing Alito's views).
If I had to say what the law is in this case I would say this:
The law is currently unclear. There is, however, a bunch of Supreme Court opinion which seems to give permission to circuit courts to figure this issue out.
Edit: I would also like to point out that the third circuit has held that historical cell site location information is at least potentially protected under the 4th Amendment, and that magistrates have the power to deny ordering disclosure of such on the basis of such 4th Amendment concerns. I don't think the Third Circuit could do this if it was clearly established that these third party business records were outside the purview of the 4th Amendment.
However I am not certain that this is the only way to look at the existing precedents. If you look at Rhenquist's majority opinion in Knotts, for example, he is quite clear that whether widescale tracking is under the same rules is not a question the court was deciding. Knotts is important for the Verizon order because I think one can argue that beeper cases are closer to cell site location information (also disclosed under the Verizon order) than they are to pen registers.
Since Knotts leaves explicitly open the question of whether widespread location tracking is under different rules, I think it is premature to just say that Smith and California Bankers Association control on their face. Additionally it is anything but clear what the Supreme Court said about this in Jones v. United States because it isn't clear how to count the votes. I would argue that Sotomayor and Alito do not control, but the fact that you have 5 justices clearly edgy about such things in their separate opinions (Alito concurring in judgement joined by Breyer, Ginsberg, and Kagan, Sotomayor concurring with Scalia but endorsing Alito's views).
If I had to say what the law is in this case I would say this:
The law is currently unclear. There is, however, a bunch of Supreme Court opinion which seems to give permission to circuit courts to figure this issue out.
Edit: I would also like to point out that the third circuit has held that historical cell site location information is at least potentially protected under the 4th Amendment, and that magistrates have the power to deny ordering disclosure of such on the basis of such 4th Amendment concerns. I don't think the Third Circuit could do this if it was clearly established that these third party business records were outside the purview of the 4th Amendment.