Supreme Court takes up warrantless cellphone searches

Nov 2005
The U.S. Supreme Court has agreed to hear a case this term that experts are calling a "blockbuster" and could have significant implications on one's expectations of privacy.

The case, Carpenter v. U.S., raises the question of whether the federal government's search and seizure of cellphone records without a warrant violates the Fourth Amendment.

The case stems from a string of armed robberies in Ohio and Michigan in 2010 and 2011. During its investigation into the robberies, the federal government applied for and obtained court orders to access cellphone location records for several suspects, including Timothy Carpenter, the lead plaintiff in the case.

The government received several months of information, including the dates and times of calls, as well as "cell site information for the target telephones at call origination and at call termination for incoming and outgoing calls." Cell site information location is the information generated with a cellphone communicates with a nearby cell tower. According to the National Association of Criminal Defense Lawyers, that information from cell towers can mark that phone's location, allowing "law enforcement to piece together past events, 9 for example, by connecting a suspect to the location of a past crime."

The court order that addressed Carpenter was specifically directed toward MetroPCS, his cellphone provider, and the company handed over 127 days of cell-site information, or location records, which showed 12,898 separate points of location data.

Carpenter was ultimately convicted in part because of the cell site location information turned over to the federal government. He appealed to the U.S. Sixth Circuit Court of Appeals, arguing the federal government violated his Fourth Amendment rights, which protects Americans from unreasonable searches and seizures, when they obtained the records without a warrant. To obtain a warrant, the government must demonstrate probable cause, a higher burden for the government to meet. But to obtain the court order, the government need only demonstrate "reasonable grounds" to believe the cell location information is relevant to law enforcement's investigation.

The Sixth Circuit Court of Appeals disagreed, and said a warrant isn't required under the Fourth Amendment. The ACLU then petitioned the Supreme Court to hear the case.

Carpenter's case focuses specifically on cell-site location information, but experts say the case forces the court to confront whether a decades-old legal theory has become outdated in the digital age.

"When the Supreme Court decides a case like this, it has ripple effects throughout society. The real decision in this case is about what the third-party doctrine is going to look like in the 21st century," said Wesley Hottot, a lawyer with the Institute for Justice. "In the new world in which we live where companies have vast amounts of data, are we going to have a legal rule where the federal government can freely get all of that, or are we going to have a more nuanced approach that says the government can sometimes get that information based on certain protections?"

Under current law, the federal government isn't required to obtain a warrant to get cellphone location information under what's known as the "third-party doctrine," derived from two Supreme Court decisions from the 1970s.

The Supreme Court said when a customer gives information to a third-party, such as a phone company, the customer has lost the expectation of privacy by voluntarily handing it over to that third party. That party, the Supreme Court said, can then do whatever it wants with it, including giving it to the government.
Supreme Court takes up warrantless cellphone searches

It's high time this issue be decided. When the previous, outdated precedent was established, it had no idea regarding the extent of capability that would exist today.
Our governmental practice of using cell phone data to track people should require a warrant.
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