In a major decision last week, the Fifth Circuit Court of Appeals ruled that the location of your cell phone when you place a call is not protected by the Fourth Amendment, which guards against “unreasonable searches and seizures.”

Whenever you make a cell-phone call, your phone provider knows where you are—it needs that information in order to find your device and complete the call. Phone companies generally keep records of users’ locations when calls are connected and disconnected. These logs, which store data about which cellular sites phones connect to, are known as historical cell-site records. Since most people keep their cell phones with them, a record of a phone’s location generally provides a good lead on its owner’s location as well. If the Feds want to know where you were last Tuesday at 9 P.M., for example, they can get a pretty good idea by finding out where your phone was.

The important legal question is how much protection these records receive when the government wants to make providers turn them over. In other words, what kind of evidence should the government be required to present in order to get your location records from a cell-phone company?

Legal protections generally come in two forms: statutory protections enacted by Congress and constitutional protections recognized by the courts. Congress has protected historical cell-site records with an intermediate threshold sometimes called reasonable suspicion. That’s the same standard it must meet to justify stopping and frisking someone for suspicious activity. Under Congress’s law, the government generally needs to go to a federal judge with reasonable grounds for suspecting that the records reveal a crime in order to access them.

If the Fourth Amendment’s ban on unreasonable searches and seizures protected cell-site records, the government would be required to satisfy a higher legal standard known as probable cause in order to obtain the records—the level of certainty required to arrest someone or to search their home for evidence. And unlike privacy protections enacted by Congress, constitutional protections can’t be taken away by a future legislature.

But in the new decision, the Fifth Circuit held that the Fourth Amendment does not apply to historical cell-site information; statutory protections are their only shield. If you want more privacy, the court suggested, your best options are to call your Congressman or to ask your phone company to enact a new policy to delete or anonymize its records.

The heart of the court’s reasoning is that there’s a difference between communicating with the phone company to set up a call and communicating through the company during the conversation that follows. When you’re actually talking on the phone, the content of the call belongs to you and the person you’re talking to—and the phone company can’t listen in. If the government wants to tap the line, the Fourth Amendment applies and the government needs a warrant.

But when you place a call, you need the phone company to route and direct the call over its network, and to do that, your cell phone needs to communicate with the phone company and disclose its location. That, the court reasoned, is communication between you and the company. And the record of whatever information your phone sent to the company belongs to the company, not to you. If it wants to keep that record for business purposes, it can. And if the government wants that record from the phone company, that’s an issue between the two of them—not an issue between the phone company and you.

The appeals court’s reasoning follows the 1979 Supreme Court decision in Smith v. Maryland, which found no Fourth Amendment protection in the numbers dialed to place a call. According to that case, when you dial a phone, you’re communicating to the phone company just like people communicated with a human operator before phones had dials. The court ruled that while new technology had automated the process, it made no substantive difference.

As a matter of precedent, the appeals court’s decision accurately follows Smith v. Maryland. Lower courts are obliged to follow Supreme Court decisions, and the analogy between dialing numbers and sending cell-phone locations is pretty close.

There’s also a subtle wisdom behind the reasoning of Smith and the Fifth Circuit decision. In a world before communications networks, the Fourth Amendment protected the inside of your home, but it didn’t apply outside. If you wanted to meet with someone in person, you had to go outside, where the police could watch you and learn your movements.

Now, consider the role of the telephone network. Phones let your fingers do the walking: thanks to the network, you don’t have to travel outside to speak to a friend who is miles away. But your location information, told to the phone company, is the network equivalent of the kind of information that used to be exposed to the public—including the police—when you travelled in person to meet.

To maintain the traditional balance of Fourth Amendment protection across new technologies, it makes sense for the Fourth Amendment to protect the contents of calls but not the phone company records about where and when the call occurred. The contents are like a conversation in a home, and should remain protected; the records are like the outside travel, and should remain unprotected.

Others argue that the Fourth Amendment should apply more broadly to keep the government at bay. Some look to the concurring opinions in the 2012 Supreme Court decision in United States v. Jones, which applied the Fourth Amendment to G.P.S. surveillance. In that case, the police suspected Antoine Jones, a nightclub owner in Washington, D.C., of drug trafficking. The police wanted to track his movements to show his involvement in the crime, so they attached a G.P.S. tracking device to the bottom of a car he drove, and monitored it for twenty-eight days. The court ruled that installing the physical device “searched” the car under the Fourth Amendment. Five Justices added separate views that the twenty-eight days of monitoring was a search, even if no physical installation occurred.

If tracking the location of a car over time is regulated by the Fourth Amendment, as five Justices suggested in Jones, why shouldn’t tracking the location of calls receive the same treatment? That argument will receive a serious hearing in other cases now pending in the federal courts. If other courts agree with the latter view, the Supreme Court will likely agree to step in and resolve the lower courts’ disagreement. But don’t expect it to review the Fifth Circuit’s decision: because of the strange way the Fifth Circuit case arose, it can’t.

In most Fourth Amendment cases, there are two sides: the searchers and the searched. Normally, if the government wins in a lower court, the individual can ask a higher court to review that ruling. But in this case, the Feds applied for several orders seeking records under Congress’s privacy statute, and the first judge refused to issue the orders on Fourth Amendment grounds. The government appealed the denial, and the Fifth Circuit ruled for the government. But because the orders have not yet been issued, the government is the only party to the dispute; no records have been collected yet, and we don’t even know who the suspect is. Now that the government has won, no one can appeal. (I filed a friend-of-the-court brief arguing that the court couldn’t rule on the constitutional issue because of this strange procedure, but the court disagreed.)

The decision is a win for the government and police powers, with the caveat that other cases are pending and may reach a different outcome. And if they disagree, it will be up to the Supreme Court to decide.

Orin Kerr is the Fred C. Stevenson Research Professor of Law at George Washington University and a contributor to the Volokh Conspiracy.

Photograph by Mohammad Moniruzzaman/Corbis

Correction: The description of United States v. Jones was updated to correct an editing error.