October 28, 2016– Five civil liberties groups today filed an amicus brief urging the U.S. Supreme Court to rule that warrants are needed under the Fourth Amendment before law enforcement authorities can gain access to cellphone location data.
The Electronic Frontier Foundation, the Brennan Center for Justice, the Center for Democracy & Technology, the Constitution Project, and the National Coalition to Protect Civil Freedoms urged the Supreme Court to grant cert in two cases, “U.S. v. Carpenter” from the Sixth Circuit (Cincinnati) and “U.S. v. Graham” from the Fourth Circuit (Richmond) in which the courts ruled that law enforcement officers don’t need warrants to get cell-site location information (CSLI). Criminal defendants were convicted after police used that information, which was obtained without warrants.
“The dramatic increase in the number of cell phones and cell sites and the amount of detailed, sensitive location data they generate, combined with the quantity and extent of law enforcement demands for this data, show that it is time for this Court to address the Fourth Amendment privacy implications of CSLI,” the groups said in their brief. “The fact that judges within the federal and state court systems are in stark disagreement regarding whether a warrant is required to obtain this data only underscores this point.”
The brief added, “In the roughly ten years that courts have been considering the Fourth Amendment’s application to CSLI, there has been intense disagreement among judges and courts in both the state and federal systems. Within the five federal Circuit Courts of Appeal that have addressed the issue, many judges would hold or have held the third-party doctrine does not bar Fourth Amendment protection for CSLI. In federal circuits where appellate courts have yet to address this issue—including the Second, Seventh, and Ninth Circuits—district court judges have also held the third-party doctrine does not apply to CSLI. Other federal judges have recognized the strong privacy interest in CSLI but concluded their hands were tied by ‘Smith’ [a 1979 Supreme Court decision that said people who voluntarily give information to third parties such as phone companies have no expectation that the information is private], or simply acknowledged the need for further guidance from this Court. As one court concluded after reviewing CSLI opinions, ‘these decisions are impossible to reconcile.’”
The civil liberties groups argued that cellphone users are not voluntarily conveying CSLI to their providers and that they reasonably expect that the information will remain private. “Cell phone users don’t voluntarily provide location data to their providers—it happens automatically without their control and is generated whether or not the phone is being used,” EFF Senior Staff Attorney Jennifer Lynch said in a news release. “Other federal courts and judges in several states have recognized that the so-called ‘third party doctrine’ doesn’t apply to CSLI. It’s time for the Supreme Court to consider whether a decision it made before the existence of commercial cell phones, which are now ubiquitous and reveal our every move, can still be used to override Fourth Amendment protections.” —Paul Kirby, firstname.lastname@example.org