Supreme Court

SCOTUS Agrees to Hear Significant 4th Amendment Case on Warrantless Cell Phone Location Searches

The Supreme Court will hear arguments in Carpenter v. U.S. next term.

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Today the U.S. Supreme Court agreed to hear a major case that has the potential to reshape the face of Fourth Amendment jurisprudence in the age of the cell phone.

At issue in Carpenter v. United States is whether the FBI violated the Fourth Amendment when it obtained, without a search warrant, the cell phone call and location records of several suspected armed robbers. By pinpointing the cellular towers that handled the suspects' calls during the time periods in which the robberies were committed, federal officials were able to trace back the suspects' movements and link their whereabouts to their alleged crimes.

According to the U.S. Court of Appeals for the 6th Circuit, which ruled in favor of the government's warrantless activity in this matter, "although the content of personal communications is private, the information necessary to get those communications from point A to point B is not." And "cell-site data," that court said, just "like mailing addresses, phone numbers, and IP addresses [are] information that facilitate personal communications, rather than part of the content of those communications themselves. The government's collection of business records containing these data therefore is not a search."

The 6th Circuit justified its decision by citing U.S. Supreme Court precedent. For example, in Katz v. United States (1967), the 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."

Otherwise known as the "third-party doctrine," this legal standard has proven to be a great boon to law enforcement. But it has also placed certain Fourth Amendment rights on the chopping block. The question for the Supreme Court in Carpenter v. United States is whether the fundamental right to be free from unreasonable search and seizure can be squared with the vast warrantless search powers that law enforcement officials now routinely enjoy.

Oral arguments in the case are likely to be held at SCOTUS this fall. Will the Court cabin the third-party doctrine, curb the power of the police, and recognize broader Fourth Amendment protections for cell phone users?

At least one member of the Court seems inclined to do all of the above. As Justice Sonia Sotomayor remarked in the 2012 case of United States v. Jones, "people disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers…. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection."

Stay tuned.

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35 responses to “SCOTUS Agrees to Hear Significant 4th Amendment Case on Warrantless Cell Phone Location Searches

  1. Prediction: SCOTUS rules that the police can access our records at any time under the FYTW doctrine.

    1. thats what i am sadly expecting. Scotus sucks ass.

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  2. One the simple and direct side, the founders expected that privacy would remain subject to an individual’s full control. What you say and to whom you say it is fully known to you at the time. If you tell the town gossip something, it will not remain private. If you tell your business partner something confidential, you check to be sure the clerk is not listening in. Under those expectations, this ‘data’ would clearly be covered by the fourth amendment.
    Today, you do not, and probably cannot, know who is listening. Under the current technology, is there any valid expectation of privacy? A case can be made for the cell tower data being like walking past the town drunk; he may remember when and where, and is allowed to talk to the cops without a warrant. I personally would not have any expectation of privacy about any radio transmissions I generated. But I suspect there are people who are not even aware of how cell phones work. If I were a crook, I certainly would not be carrying a cell phone around with as I did the deed. Basically, cell technology, and the internet (aka wi-fi) are big brother at his finest.
    Of course, if there were a legislature of statesmen concerned about the citizens, the issue would be addressed with legislation clearly sweeping these kinds of data under the fourth amendment, and requiring a warrant. On the other hand, we get the opposite.

    1. A case can be made for the cell tower data being like walking past the town drunk; he may remember when and where, and is allowed to talk to the cops without a warrant

      Cell tower data is nothing like walking past the town drunk. The town drunk is a random guy you pass with whom you have no standing agreements. The cell tower is owned and operated by people with whom you have entered into a business agreement. Also, the town drunk would be providing eye witness testimony, whereas the cell tower is providing data/records.

      Cell tower data is more like a visit to an ATM or using a credit/debit card at a store. Do police need a warrant to see when and where you did these activities? Do they need it to see how much you deposited/expended and into/from which accounts? I don’t know, but this is a much better analogy than the town drunk.

      If the police want to set up their own cell receiver, I think they’re welcome to do it and use the data however they want so long as they don’t interfere with operation of the network. Otherwise, I think they need a warrant to access any records retained by the service providers.

      1. Perhaps, but say you went to the store and bought something in cash. The store owner could pull up his records and show the bill of sale to the cops. I don’t think you have an inherent 4th Amendment Right here, but I would expect my cell phone provider or ISP to demand a warrant to hand over data.

        Also, the cell tower might not be someone you have contracted with. Your phone regularly communicates with other network towers.

        1. I would expect my cell phone provider or ISP to demand a warrant to hand over data.

          Agreed. Unless I have a contract that says otherwise, the service provider can do what they want with the data. If I have a contract that says they won’t provide any data or metadata to other parties, then they should only hand that data over to the police if issued a warrant. Otherwise, I guess I can take them to civil court.

          Also, the cell tower might not be someone you have contracted with. Your phone regularly communicates with other network towers.

          True. This is a stickier situation. Other providers obviously have agreements with my provider to ensure uninterrupted service, but they don’t have a contract with me. This becomes a question of contracts again.

          1. You know, if your cell provider isn’t allowed to give data to 3rd parties none of your fancy little applications would work. Go ahead and look at what each application ‘needs’ to function on your device; by-and-large most applications are going to want your location data specifically for advertising purposes, and restricting that data by your carrier will result in huge marketplace losses with both Apple and Google’s application stores.

            I mean, maybe that’s something you want but consumers have spoken; they do not want this data limited. Privacy lost on the individual level in this area. If you want to fight it, don’t use a cell phone. No one is twisting your arm to own one, after all, but if you choose to use one you are being tracked six ways from Sunday by more places than you’ll be able to find out about. This is a function most people appreciate, even if they didn’t bother to read the ToS regarding said location data.

            1. Your cell phone provider is not the one that chooses to disclose your location info to those apps (or any other data). That is done by you on the phone itself.

              It would be like saying the water company knows if your hose if washing your car or watering your flowers.

        2. Am I the only one who thinks a warrant should be needed to know what I purchase? The fact any police can just willy nilly pull up everything I buy and my finances is beyond creepy and an over reach.

          I can’t image the founders being cool with the idea government knows every single purchase i make and where at a press of a button.

      2. If the police want to set up their own cell receiver, I think they’re welcome to do it and use the data however they want so long as they don’t interfere with operation of the network.

        They’ve been doing that, of course; they’re called Stingrays or IMSI Catchers. So you think there should be no restrictions on their use?

        1. Actually, I think this is an interesting question. For example, if you are out walking or driving in public, the police can watch you. Anyone can watch you. They could park themselves across the street from your house. As long as they aren’t interfering with you, or searching you or your stuff, then it would be perfectly constitutional. Of course, that doesn’t mean you can’t attempt to elude them, or makes sure the blinds are drawn or try to confuse them. (There is an issue with dark window tinting on cars, but that is pretty bogus since they always say its for safety. But as long as the driver can see out, then it should be ok).

          Is tracking your location on a cell phone the same thing? I am not sure if it is or isn’t. But I do think when we argue for privacy (as we absolutely should), we should try to compare apples to apples as much as we possibly can.

        2. So you think there should be no restrictions on their use?

          As long as they don’t interfere with the normal operations of the cell network, I don’t see any other restrictions. Certainly they can just passively listen to what you’re broadcasting since you’re just putting it out there for all to see.

  3. Time to demand those records for all of us to look through.

  4. “As Justice Sonia Sotomayor remarked… I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.'”
    US Constitution, Amendment IV:
    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
    You “assume” correctly Sotomayer.

    The Amendment says persons, houses, papers and effects are protected. If the government wants items that belong to a person, they need a warrant. Cell phone info belongs to that person of interest of the government would not want it.

    A simple solution is to just randomize all data so people do not have accounts based on names but account numbers. In other words, my cell phone account would be my phone number only with no name attached. The data does not belong to anyone, government cannot have access to any data like that because it belongs to nobody, and the data is erased after 30 days.

  5. “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”

    I realize that was in the context of government searches. But if that is held as a true statement, then those nude pics your ex sent you before you broke up are fair game to post.

    (From a libertarian perspective, in the absence of a contract agreed to prior to the giving of the pics, this example would still probably hold true. But it would throw away all those “revenge porn” laws that states have passed.)

  6. “people disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers…. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”

    Actually, good question. Is all that info she referenced protected by the 4th Amendment as currently understood? IOW, are online purchases protected by the 4th Amendment.

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

    Uh-huh.

  8. I hand my mail over to a third party to be sent out. They still need a warrant to open it. I’d imagine cell towers are pretty much the same way. They are just moving data between different addresses.

    The 6th circuit is apparently full of idiots.

  9. Umm…sorry folks the SCOTUS will almost certainly say the police don’t need a warrant because you have no expectation of privacy on a cellular phone when it comes to data such as where you’ve been. Why is that, you might ask? Because you’re out in public, publically transmitting a location beacon from your pocket. Is it stupid to keep a chatty cathy gossip in your pocket while you commit crimes? Absolutely, it is very stupid indeed. But is your location ever private? Not unless you’re in your house behind closed curtains; otherwise anyone in a public right of way could see you going from A to B.

    Now, is there a separate issue that says maybe the government should need a warrant for data obtained by your phone carrier? Maybe. But as others have said above, this is very ‘public’ data since you have literally no idea who owns what tower in a given area and yet you have your cell phone on transmitting a locator beacon to strangers towers.

    All that being said, if they want actual data such as texts / conversations that should absolutely require a warrant in all cases. The fact retards are retarded and don’t understand how technology works is definitely their own problem.

    1. But is your location ever private? Not unless you’re in your house behind closed curtains

      and not carrying your cell phone, right? RIGHT?!

      1. Pretty obvious, one would think.

        I could understand a requirement for the government to obtain a warrant for private data held by a cellular company, to be absolutely clear, but as an individual that data doesn’t really ‘belong’ to you any more than your location ‘belongs’ to you when a stranger see’s you walking down the street; or when you hail a taxi that where they drop you off is a ‘secret’. You don’t need a warrant to ask that person questions, but of course that ‘stranger’ doesn’t have an onus to testify without a subpoena as far as I’m aware either.

        There are all kinds of implications, both ways, but it’s doubtful very many people read the ToS for their mobile carrier either.

      2. Does anyone not carry a cellphone? Every day more of your life involves a cellphone. Pretty soon it will be as impossible to live without one as it is to be without photo id and a credit card.

  10. I expect the government to win this one. Reason being the government is not attempting to obtain evidence, only location. They’re not trying to prove defendant did anything or where he was at some time in the past, only where he is right now. Obviously they already know his phone number. Really not different from broadcasting a BOLO for a particular car with a certain plate number.

  11. RE: SCOTUS Agrees to Hear Significant 4th Amendment Case on Warrantless Cell Phone Location Searches
    The Supreme Court will hear arguments in Carpenter v. U.S. next term.

    Not to worry.
    Our glorious justices on the Soviet Supreme Court will again wipe their ass with the US Constitution again.
    You can’t have a police state if you have justices on our highest court that put our civil rights ahead of the gains of our beloved secret police.

  12. There is zero chance that the Supreme Court will ever rule against the right of police to gather any information that they want, no matter how private.

    If people want privacy, they will have to depend on encryption and other technologies that actively defeat information snooping by police. On the plus side, the market for data privacy products and services will explode.

  13. Buy a cheap phone, commit your dirty deeds, throw the phone in the river. Cell tower information is no more private than security camera pictures.

  14. I’m not a constitutional scholar so, could somebody help me out here? Exactly why is it that the “third party” has no expectation of privacy? Can someone lead me to the relevant part of the constitution which says that because you are a business the 4th Amendment doesn’t apply? Is it the FYTW clause, that part of the constitution that’s written in invisible ink that can only be seen by G-men? Does any business ever say “No!” when cops show up without a warrant? If none do, why is that so? And, just where is Judge Napolitano when you need him?

  15. “people disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers…. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”

    Actually, good question. Is all that info she referenced protected by the 4th Amendment as currently understood? IOW, are online purchases protected by the 4th Amendment.

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  16. expect the government to win this one. Reason being the government is not attempting to obtain evidence, only location. They’re not trying to prove defendant did anything or where he was at some time in the past, only where he is right now. Obviously they already know his phone number. Really not different from broadcasting a BOLO for a particular car with a certain plate number.
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    1. “They’re not trying to prove defendant did anything or where he was at some time in the past, only where he is right now.”
      Maybe we read different articles.The cops used the past locations as evidence he was at the scene of the crime.

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