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Privacy In the Digital Age?
An Update: The Supreme Court Examines Cell Phone Tracking and Privacy Rights

10/24/18 | By: Adam M. Felsenstein, Esq. | GDB 2018 Fall Newsletter
In the Winter 2018 edition of this Newsletter, I wrote an article regarding a case pending in the United States Supreme Court regarding whether the government needs a warrant to collect cell tower location data maintained by a cellular carrier.  In United States v. Carpenter, the Supreme Court was determining whether cell phone location data, obtained directly from a cellular carrier without a warrant, could be used against a defendant in a robbery trial.  On June 22, 2018, the Supreme Court reached a decision on this important case which explores the contours of privacy in the digital age. 
Mr. Carpenter had been convicted of armed robbery in Ohio and Michigan.  Critical to his conviction was the Government’s use of cell phone tower location data which placed Mr. Carpenter near the scene of two robberies at the approximate times when the crimes occurred.  These records were obtained directly from the cellular carriers without a search warrant. 
The Government argued that it did not need a warrant to obtain the information from the carrier because it was shared voluntarily by Mr. Carpenter’s use of the phone.  Accordingly, Mr. Carpenter could not have had a reasonable expectation of privacy in the records of his location data.  Mr. Carpenter maintained that even though his location data was in the possession of the cellular company and was shared voluntarily with the cellular carrier, he had a reasonable expectation of privacy in his location.  This rendered the collection and use of the data by the government without a warrant violative of the Fourth Amendment prohibition on unreasonable searches and seizure.
Traditionally, records or information that a defendant voluntarily shares with a third party are not covered by the Fourth Amendment protections.  This is known as the “third-party doctrine” first articulated by the Supreme Court in United States v. Katz over forty years ago.  In Katz, the Court found that a defendant has no reasonable expectation of privacy in records that it voluntarily gives over to a third party.  Obviously there have been dramatic changes in technology since the Fourth Amendment was adopted in 1791 and the Katz case was decided in 1967.
On June 22, 2018, the Supreme Court rendered its decision in the Carpenter case.  Noting “seismic shifts in technology,” Justice Roberts, writing for the majority (Justice Ginsburg, Justice Breyer, Justice Sotomayor and Justice Kagan), found that law enforcement officials do need to obtain a warrant before they can collect cell tower location data about a defendant. 
In reaching this decision, Justice Roberts had to reconcile the “third-party doctrine” with current technology.  When Katz was decided in 1967, the Supreme Court could not have envisioned a device that could track a user’s every move in real time.  Prior cases regarding the third-party doctrine had involved the collection and storage of “limited types of personal information.”  The Court found that given the unique nature and incredible breadth of cell phone tower location data, the “third-party doctrine” did not apply.
Further, while prior precedents of the Supreme Court had held that one generally does not have an expectation of privacy in one’s location, which is readily accessible by anyone in the public, constant tracking through cell phone tower location is an animal of a different stripe.  Justice Roberts noted that this is not at all the same as a police officer following a suspect for a limited period.  This is akin to near perfect surveillance where a police officer attached an ankle bracelet to a suspect for up to five years.  Accordingly, the prior cases which held that one cannot have a reasonable expectation of privacy in one’s location are inapplicable here. 
In the end, the Supreme Court attempted to narrow its holding so that it applied only to cell phone tower location data.  Justice Roberts explicitly stated that the ruling did not express a view on other privacy issues.  However, the broad ramifications of this ruling are clear.  The Supreme Court is ready and willing to update its view of the Fourth Amendment in light of a new technology that provides unprecedented levels of information about a user to a third party.  Given the rapidly evolving pace of technology, it is only a matter of time until a new technological challenge to the Fourth Amendment comes before the Supreme Court.