Carpenter v. United States - Supremes require police to get a warrant if they want your cell phone location data.
The United States Supreme Court just decided what is widely viewed as a major privacy case. As a result, of the close decision (5-4), the Government will need to obtain a search warrant in order to access your cell phone location data. In the case before the Supreme Court, the Government had obtained Mr. Carpenter's cell phone location data without a search warrant, according to a federal law permitting law enforcement to obtain such records simply on a showing of what amounted to potential relevance to an investigation.
Wait, you mean they didn't need a warrant before?
Perhaps you are a bit surprised that this was even an issue. How would the Government be able to get access to your personal cell phone records without some kind of warrant, you may well ask.
And the answer, until a few days ago, was that strictly speaking, the cell phone records might have been "about" you, but they were really records collected and maintained by your cell phone carrier, not you. As records kept by your cell phone carrier, you would not have a sufficient privacy in those records to give you a right to complain that "your" records were being searched. You gave up that privacy interest by voluntarily allowing yourself to use a device that generated the information that was being collected and stored by the cell phone carrier third party. At least this was the Government's position.
The Government took this position because, in different situations, documents held by third parties have been considered to be available to the Government without a warrant, where those documents, and the information inside them have been voluntarily placed into the custody of the third parties, and available to those third parties to review.
In Mr. Carpenter's case, the Government took advantage of The Stored Communications Act to obtain cell phone records for Mr. Carpenter and several other suspects in a bank robbery investigation. The Stored Communications Act, as amended in 1994, permits the Government to compel the disclosure of certain telecommunications records when it “offers specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.” 18 U. S. C. §2703(d).
Notice the language regarding when the Government can gain access to the records. ("Reasonable grounds to believe" that the sought records are "relevant and material" to an ongoing investigation.) If you are thinking that this is a pretty low standard, you would be correct. If you are thinking that this sort of loose and low standard would not exactly meet the Constitutional standard for a search warrant of "probable cause" you would also be correct.
And there is the rub.
If the Supreme Court had found that the cell phone location records were like many other sorts of records kept by third parties with the permission of the people who asked them to hold the records, then probable cause and warrants would not be an issue. It wouldn't be a search about which Carpenter could have complained, because Mr. Carpenter would not have had a sufficient privacy interest in the cell phone carrier's records any longer to be allowed to complain. He shouldn't have given the information to the cell phone carrier if he weren't willing to give up his privacy interest in the information.
But the Supreme Court did NOT find that cell phone location records were like any other sorts of records kept by third parties. And it made all the difference in the world.
Why are Cell Phone Location Records Different?
The Supreme Court found that cell phone location records are different based on a combination of several reasons.
First, while the notion that cell phone location information is voluntarily provided to the third party may be technically, at some level, an accurate statement of logic, it doesn't capture the reality of the situation. The reality of the situation is that cell phones have become such a universal and important basic tool of society, that it is actually difficult to participate in modern society without a cell phone.
Second, as an individual cell phone customer, it isn't as if you have much choice in or say in how the cell phone carriers go about logging and storing the information they require to provide the services that they provide over cell phones. The notion that you knowingly and meaningfully "give" your cell phone carrier this information, or that you have some sort of bargaining power as an individual customer to negotiate how they deliver their services and maintain their records is somewhat strained.
Third, and perhaps most important of all to the Supreme Court, is that the incessant nature of the data collection, combined with the almost universal practice that people keep their cell phones near them at almost all times, means that cell phone carriers, in their data, have what amounts to a virtually non stop, and precise map of your every moment and location for years at a time. The Supreme Court identified this extremely lengthy and detailed map of your movements as a very particular and extraordinarily private kind of information.
Therefore, the Supreme Court determined that this sort of automatic collection and storage of cell phone location data, even though it is collected and stored by a third party, is nevertheless a sort of private information that people could legitimately expect to be maintained as private even or especially against the Government (in the absence of a warrant based on probable cause).
Therefore, under the decision in the Carpenter case, the Government can no longer simply claim that your cell phone location data may be relevant to some generic investigation and gain access to the information about you. The Government will have to obtain a search warrant based on probable cause, as a general rule.
Of course the Supreme Court made it clear that the various specific exceptions to the warrant requirement still apply. For example, if there are "exigent circumstances" the Government may act in the absence of a warrant. But woebetide the Government and its ability to use the evidence obtained if a Judge determines that the Government's claimed "exigent circumstances" did not exist after all.
The Supreme Court also made it clear that the Carpenter decision is not the opportunity to run far and wide assuming that the holding in the case applies to situations other than cell phone location data. The case is quite clearly narrowly crafted to leave other potential issues to future cases.
Don Murray is one of the founding partners of the boutique criminal defense law firm Shalley and Murray. Mr. Murray has been defending people accused of crimes in New York City Criminal Courtrooms for more than 27 years. He can help you too. Call or text 718-268-2171 for your free consultation about a criminal matter in New York City.