Supreme Court

Indiana Supreme Court: Cops Don’t Need a Search Warrant to Get Cell Phone Location Data

How many Fourth Amendment protections do we forfeit when we use a cell phone?

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Cell phones, the Indiana Supreme Court observed yesterday, are "double-edged swords, increasing convenience at the expense of privacy." That court then demonstrated just how expensive the costs to privacy can be.

Yesterday's ruling in Zanders v. Indiana centered on one of most pressing questions in modern Fourth Amendment law: Namely, when the police want to track somebody's movements via that person's cell phone location data, do the police need a search warrant in order to get that data from the person's cellular service provider? In this particular case, the police obtained Marcus Zander's cell site data without a warrant and used that information to trace his whereabouts during the time periods in which several armed robberies had been committed. Those cell phone records were later used against Zanders at trial.

"Zanders presumptively knew that his phone makes and receives calls by sending signals to towers," the Indiana Supreme Court said, "and that Sprint keeps records of these signals for business purposes like billing and tracking tower usage." Because Zanders had no "reasonable expectation of privacy" in such records, the Indiana Supreme Court ruled, the Fourth Amendment offers him no protection when the police obtain such records without a warrant.

The Indiana Supreme Court claimed that its hands were tied and that it had no choice but to rule in favor of the police on account of several U.S. Supreme Court precedents. In Katz v. United States (1967), for example, the U.S. Supreme Court held that "what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Even more significantly, in Smith v. Maryland (1979), the Court ruled that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."

Fourth Amendment advocates are increasingly urging the U.S. Supreme Court to reconsider those precedents in the digital age. As I noted in a column earlier this week, five different petitions are pending before SCOTUS right now that ask the justices to step in and review lower court rulings that have allowed warrantless police searches of cell site data. Those five cases, as I explained, all turn on "the conflict between the Fourth Amendment right to be free from unreasonable search and seizure and the third-party doctrine's vast grant of warrantless search and seizure powers to law enforcement agencies." We may found out as early as next week if the Court agrees to take one or more of those cases.

It all boils down to this: How many Fourth Amendment protections do we forfeit when we use a cell phone? That's the question that the U.S. Supreme Court is eventually going to have to face.

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26 responses to “Indiana Supreme Court: Cops Don’t Need a Search Warrant to Get Cell Phone Location Data

  1. I just wonder how long it will be before not carrying a cell phone will be regarded by the police as “suspicious” and therefore will be regarded as “probable cause” to cancel out a citizen’s Fourth Amendment rights. And the courts will back them up on it.

    1. I know first-hand that AT&T has been increasingly and exceedingly negligent with copper-wire service in the last decade or so. Can’t say that I blame them but, at the same time, I kinda wish they’d say something like ‘You’re gonna need a warrant to use our tower’.

      1. Support service that is. They’ll send you a bill and upgrade features at the drop of a hat. But if your line gets damaged, what used to take hours-to-days to fix now takes days-to-weeks.

  2. How many Fourth Amendment protections do we forfeit when we use a cell phone?

    None, obviously – the Fourth doesn’t protect cell phone usage therefore there’s no protections to forfeit. Our Founding Fathers couldn’t have foreseen cell phones so those old proscriptions against the government don’t apply, just as the right to keep and bear arms doesn’t apply to anything other than muskets and freedom of the press only applies to manual typesetting equipment and the right to petition the government for redress of grievances only applies to appeals written with a quill pen on parchment.

  3. How many Fourth Amendment protections do we forfeit when we use a cell phone?

    None, obviously – the Fourth doesn’t protect cell phone usage therefore there’s no protections to forfeit. Our Founding Fathers couldn’t have foreseen cell phones so those old proscriptions against the government don’t apply, just as the right to keep and bear arms doesn’t apply to anything other than muskets and freedom of the press only applies to manual typesetting equipment and the right to petition the government for redress of grievances only applies to appeals written with a quill pen on parchment.

  4. Or turning off location, or just turning it off.

  5. Of course, you might remember it was the Indiana Supremes that upheld the conviction of a guy resisting police coming into his home without a warrant on the grounds that there is no right to resist a police officer even when what the police officer is doing is against the law. When the Indiana legislature immediately passed a law over-turning that opinion, the usual suspects started squawking that the Indiana legislature had just legalized assaulting police officers rather than that they had smacked down the Supremes for claiming the right to self-defense did not extend to defending yourself against attacks by the police.

  6. RE: Indiana Supreme Court: Cops Don’t Need a Search Warrant to Get Cell Phone Location Data
    How many Fourth Amendment protections do we forfeit when we use a cell phone?

    You lose all your Fourth Amendment protections when you use a cell phone.
    You also lose all your Fourth Amendment protections when you use a condom.

    1. You lose all your Fourth Amendment protections when you use a cell phone.
      You also lose all your Fourth Amendment protections when you use a condom.

      You must be an Apple fanboy.

  7. Sprint keeps records of these signals for business purposes like billing and tracking tower usage

    Those records are owned by the BUSINESS, not the user. And the business has the discretion to provide those records to law enforcement with or without requesting a warrant or a subpoena a priori.

    PERIOD. END OF STORY. GO HOME AND CRY YOURSELF TO SLEEP.

    This is not the 4th Amendment case you’re looking for…

    1. So your doctor has the discretion to put your medical records on the internet? And your college can publish your grades? And Sprint can provide your call history and whereabouts to your mom? Of course they can’t. This exception only exists for law enforcement, because we all expect these business records will be kept private.

      1. So your doctor has the discretion to put your medical records on the internet? And your college can publish your grades?

        You’re subtly conflating a few things. First, yes, until exceedingly recently, your doctor had considerable discretion to disclose your medical records without your permission and colleges could publish your grades. Second, the doctor can publish or share your medical records as long as they aren’t personally identifiable to you and generally doesn’t need to disclose them in order to make a diagnosis. Similarly, your grades are protected rather explicitly from disclosure based on the public nature of the institution.

        Being more clear, schools are contracted to educate, doctors are contracted to treat illness disease, telcos are literally contracted to broadcast information.

        1. Well, and also there is a law that explicitly makes grades (and most other school and university records) private, and it has been on the books since 1974 (FERPA). And I think we’re going to need either a law or a Supreme Court judgment to fix this.
          Yes, those cell-tower contact records are the property of the phone company, but this is such an evolving field that it’s not completely clear that they should be available to anyone who requests them.

          1. Well, and also there is a law that explicitly makes grades (and most other school and university records) private, and it has been on the books since 1974 (FERPA). And I think we’re going to need either a law or a Supreme Court judgment to fix this.

            I’m aware of FERPA, but the act only pertains to programs specifically funded under the DOE. The government and government institutions don’t have a the ability to disclose your grades. And, again, inverse to HIPAA and in line with what is being claimed with telcos, metadata can conditionally be disclosed relatively/entirely at the school’s discretion (i.e. student directories, alumni lists, etc.).

            Further, you cite FERPA from ’74, but SCOTUS laid out third-party doctrine in 1967. If you don’t want your telco to know where you are, turn off the GPS and/or otherwise route calls outside/around/within their network yourself (or pay them or someone else to do it for you).

            It’s not a ‘right to privacy’ issue. It’s a right to keep others ignorant and compel third parties to actively uphold your expectations issue.

        2. They most certainly did not have “considerable discretion to disclose your medical records without your permission.” There’s lots of pre-HIPAA state law preventing doctors from disclosing patient medical records.

          1. There’s lots of pre-HIPAA state law preventing doctors from disclosing patient medical records.

            I mean as enshrined by law since the founding. The progression from a social/professional obligation or standard to uphold privacy as part of service towards a patients’ individual right to (expectation of) privacy is irrefutable.

            1. If the founding is your standard for “exceedingly recently,” then well….

              The reasonable expectation of privacy test is new by that standard too. My rough recollection is that SCOTUS invented that standard in the 1960s.

              1. If the founding is your standard for “exceedingly recently,” then well….

                The relative standard, sure. I guess ‘exceedingly’ is a mischaracterization. 1800 is not very recent, 1900 isn’t 1960 is getting to be fairly recent in terms of Constitutional rights.

                I think you hit the nail on the head more below. Where the disrespect for contractual obligation has been eroded such that people (libertarians) have to rely on less tangential means of legalistic self-defense.

                Whereas a good doctor used to be relied upon to keep your records private now it’s just because he’s obligated by law for 10 yrs. or whatever and then obligated to destroy them.

    2. So when businesses have massive amounts of information about people (which they do) and when those same businesses collude en masse with the government (which they do), the fourth amendment effectively becomes useless? Great idea.

      The reality is that we can place any limitation on the government that we want. If we say that the information cannot be used in court if it was not obtained with a warrant, even if the company consented, then that is totally valid and a perfectly good idea.

  8. If I use google voice to send and receive calls does that mask my location?

    Asking for a friend

  9. How many Fourth Amendment protections do we forfeit when we use a cell phone?

    None. Absolutely none. What gets lost in this diacussion is WHOSE PROPERTY is it? Is my cell phone my property? YES! Are the records on how many pings the phone generated and which are recorded and kept by the business with which I have the contract mine? Depends on the CONTRACT, but if the CONTRACT says they’re not, then THEY’RE NOT. So you don’t lose shit if the police asks the business for those records because THEY’RE NOT YOURS.

    1. The thing is, the court doesn’t care what the contract says. Even if it said “Sprint under no circumstances whatsoever, including in response to a valid warrant or subpoena, will not provide cell phone records to any law enforcement agency,” the court would still say no fourth amendment violation.

  10. The Court ruled that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”

    This is what I’ve never understood about this doctrine. Of course I have a legitimate expectation of privacy if I have an agreement with that person/company that he’s not going to disclose it or there’s expectation of privacy given the relationship. If the state really believed that, then why does it have laws saying doctors can’t publish patients medical records? And schools can’t release student records without their consent? And employees can’t reveal their companies trade secrets? Or you can’t record a conversation without both parties consent (in some states)? Or that customer service reps can’t publish credit card numbers on the internet? The state knows full well that I have a legitimate expectation of privacy in many circumstances when I give information to third parties. It just doesn’t want to respect that expectation when it’s inconvenient for the state.

  11. Can we get a lawyerly type to explain the third party doctrine to me?

    My friend hands me a manila envelope with personal secrets in it. He says as he hands it over, “I give this information to you, Diane…”

    I’m now a third party. Do the cops need a warrant to search my home to find this manila envelope? If so, why?

  12. Lets go back to the time it was written. A lot of people leased property or rented it or the mortgage was more of a land contract. My papers were still secure even if I did not “own” the room the desk was in. Yes?

    Also, I have a safe deposit box. You need a warrant. Yes?

    I think you need one even if the locker is at the bus station.

    So why is my data on Verizon not so?

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