June 5, 2017–The Supreme Court today agreed to consider whether the government must obtain a warrant before obtaining access to historical cell-site location information (CSLI). The case, “Carpenter v. United States” (case 16-402), involves whether the government violated the Fourth Amendment when law enforcement authorities obtained from carriers months of cellphone location records for robbery suspects. Authorities obtained records for 127 days for suspect Timothy Carpenter that revealed 12,898 location data points.
After being convicted, Mr. Carpenter appealed to the Sixth Circuit Court of Appeals (Cincinnati). That court ruled 2-1 that a warrant is not needed under the Fourth Amendment.
A petition for a writ of certiorari was filed last year with the Supreme Court. The petition was supported by five civil liberties groups and the Cato Institute (TR Daily, Oct. 28, 2016). “Because cell phone location records can reveal countless private details of our lives, police should only be able to access them by getting a warrant based on probable cause,” Nathan Freed Wessler, a staff attorney with the American Civil Liberties Union’s Speech, Privacy, and Technology Project, said today. “The time has come for the Supreme Court to make clear that the longstanding protections of the Fourth Amendment apply with undiminished force to these kinds of sensitive digital records.”
The ACLU is co-counsel in the case. “Given the increasing use of new forms of electronic surveillance, it’s important now more than ever that the Supreme Court steps in to push back against police overreach and clarify the protections of the Fourth Amendment,” said Harold Gurewitz, the other co-counsel.
Andrew Crocker and Jennifer Lynch, a staff attorney and senior staff attorney, respectively, for the Electronic Frontier Foundation, one of the groups that asked the FCC to take the case, said of today’s news, “This is very exciting news in the world of digital privacy. With Carpenter, the Court has an opportunity to continue its recent pattern of applying Fourth Amendment protections to sensitive digital data. It may also limit or even reevaluate the so-called ‘Third Party Doctrine,’ which the government relies on to justify warrantless tracking and surveillance in a variety of contexts.”
“The question of whether the Fourth Amendment warrant requirement applies to CSLI is a pressing one, and we hope the Supreme Court will clarify that the warrant requirement does apply, given the ability of CSLI to reveal sensitive personal information,” said Natasha Duarte, a policy analyst for the Center for Democracy & Technology, which also joined in the brief with the other civil liberties groups.
The cert petition in the case said, “The question at the center of this case — whether there is a reasonable expectation of privacy under the Fourth Amendment in a person’s cell site location information held by their cellular service provider — requires definitive resolution by this Court. Numerous lower court judges addressing the issue have explained that they feel bound by this Court’s third-party–doctrine cases from the 1970s, but that they are discomfited by the result they believe those cases require them to reach. Only this Court can provide the guidance they seek about whether and how a doctrine developed long before the digital age applies to the voluminous and sensitive digital records at issue here.”
In its brief opposing a grant of cert, the Justice Department said, “Petitioner renews his claim (Pet. 10-34) that the government’s acquisition of MetroPCS’s and Sprint’s historical cell-site records pursuant to three SCA [Stored Communications Act] court orders violated his Fourth Amendment rights. Petitioner further asserts (Pet. 21-26) that the lower courts are divided on the Fourth Amendment question. Those claims lack merit. The court of appeals correctly concluded that the Fourth Amendment permits the government to obtain historical cell-site data under the standard set forth in the SCA, and no conflict exists on that question. This Court has recently denied other petitions for a writ of certiorari raising Fourth Amendment challenges to the government’s acquisition of historical cell-site data pursuant to SCA court orders, and no reason exists for a different result here.”
EFF, CDT, the Brennan Center for Justice, 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 and “U.S. v. Graham” from the Fourth Circuit (Richmond).
In their amici curiae brief filed in support of Supreme Court review, the civil liberties groups said, “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 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.”
In the “Graham” case, the full Fourth Circuit ruled 12-3 last year that a warrant is not necessary for law enforcement authorities to receive historical CSLI (TR Daily, May 31, 2016). The en banc ruling reversed a holding by a three-judge panel in 2015 that a warrant is generally necessary before law enforcement authorities can obtain CSLI (TR Daily, Aug. 5, 2015). The Supreme Court has not decided yet whether to review the Fourth Circuit case.
In March, a three-judge panel of the Ninth Circuit (San Francisco) grilled attorneys on both sides of a similar case (“U.S. v. Antonio Gilton et al.,” case 16-10109) (TR Daily, March 17).
In 2015, the Supreme Court declined to review a ruling “Davis v. United States” (case 15-146) by the Eleventh Circuit (Atlanta) (TR Daily, Nov. 9, 2015). The en banc decision by the appellate court came in the wake of a June 2014 decision by a three-judge panel that said CSLI was subject to Fourth amendment warrant requirements, but that a district court in the case did not commit a “reversible error” in denying the defendant’s motion to exclude the location data under the good-faith exception to the exclusionary rule (TR Daily, June 11, 2014). —Paul Kirby, email@example.com