"Because wireless carriers regularly generate and retain the records at issue, and because these records provide only a very general indication of a user's whereabouts at certain times in the past, the requested cell-site records do not implicate a Fourth Amendment privacy interest," the Obama administration wrote (.pdf) Feb. 13 to the federal appeals court.

The sad thing is that their position on this isn't totally insane. Phone company records have generally been considered a constitution free zone, which was a stupid idea in the first place, but thats where we're at and statues like the stored communications act referenced in this filing are legislative band-aids that have prevented what I think would be broad calls for a constitutional amendment resulting from that silly conclusion. Now - Phone company records have accidentally become records of your physical location and movements - records they keep around for 18 months. Does that bring the Constitution into play? No, probably not.

The theory is that anything you've told the phone company or google or "the cloud" is fair game for the police.

Given that everything that anyone would ever want to know about you is in the cloud - the 4th amendment is basically useless. Stick a fork in it. The sooner people get this, the better off we'll be.

In order to resolve the problem you need one of the following:

1. A radical shift in the way courts interpret the Constitution.
2. A new Constitutional Amendment.
3. More band-aid legislation.

This physical location problem is likely to be resolved behind door number three. The frogs will need to be a great deal warmer before 1 or 2 will happen.

(But they WILL inevitably happen. Probably the first one, but only after a series of very carefully argued Supreme Court victories.)

Obama Administration: Constitution Does Not Protect Cell-Site Records | Threat Level from Wired.com