U.S. Supreme Court Expected to Issue Important Decision on Cell Phone Privacy Rights
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U.S. Supreme Court Expected to Issue Important Decision on Cell Phone Privacy Rights

1/29/2018 | By: Adam M. Felsenstein, Esq. | GDB 2018 Winter Newsletter
The U.S. Supreme Court is expected to issue a decision soon in a case which will have important ramifications for law enforcement.  Specifically, the Court is being asked to decide whether the government has the right to track someone’s location by obtaining location information from cell phone towers without a warrant. 

The case, United States v. Carpenter, involves the use of cell phone tower location data to prove a suspect’s whereabouts during the commission of a crime.  The government used cell phone tower data at trial to place the suspects within a half mile to two miles of several stores that were robbed.  The government then used call log data obtained from the phone company to show a flurry of communication around the time of the robbery.  The defendants were ultimately convicted of robbery, and have taken an appeal.  The U.S. Supreme Court is now wrestling with the question of whether the defendants had an expectation of privacy in the location data that was exchanged with the cell phone tower, and whether accessing that data without a warrant constituted an illegal search.  A decision is expected before June 2018.
The Fourth Amendment protects people from the unreasonable search and seizure of their “houses, papers and effects,” and requires the issuance of a search warrant before the Government may conduct any such search.  Of course, the Fourth Amendment was drafted 218 years before the iPhone became available.  Its drafters, even with all of their wisdom and foresight, did not contemplate a device that could constantly emit one’s location to a third party.  Now, the Supreme Court is faced with the question of how to handle such data during a criminal prosecution in light of the Fourth Amendment. 
The government obtained the cell phone location records in the United States v. Carpenter case by making a record request under the 1986 federal law called the Stored Communications Act, which allows the government to obtain records from wireless providers by merely showing that the records were relevant to an investigation.  To obtain the records with a warrant, the government would have been required to show that there was probable cause that a crime had been committed, which is more difficult. 
The defendant argued that the government violated his Fourth Amendment right to privacy by tracking his movements though his cell phone.  The government argued that it did not need a warrant because the defendant gave up any expectation of privacy or property interest in the information when his cell phone gave the information to a third party, the wireless provider.  Under the government’s theory, the government is merely obtaining the information from a thirty party witness, and therefore, it does not need to get a warrant.  
The U.S. Supreme Court has previously suggested that people may still have some expectation of privacy in information, even when it is shared with or stored by a third party.
In its 2012 decision in United States v. Jones, the U.S. Supreme Court held that the government could not attach a GPS tracking device to the underside of a suspect’s car without first obtaining a warrant.  The government argued that the suspect had no expectation of privacy in his whereabouts on public streets, and thus merely observing those whereabouts, even with technological assistance, did not violate the Fourth Amendment.  The Court nevertheless found that attaching something to the underside of a car was an intrusion onto the suspect’s property, rendering the search illegal.  The Supreme Court left undecided the question of whether the Government could review GPS data emitted by a cell phone without the attachment of a device to one’s car.
In 2014, the Supreme Court decided an issue regarding cell phone privacy in Riley v. California, namely whether a police officer may search a cell phone without a warrant, immediately following an arrest.  Prior precedent provides that the police are allowed to conduct a limited search of a suspect following an arrest to ensure that the suspect is not dangerous, and to avoid the destruction of evidence.  The Supreme Court held that searching a suspect’s cell phone after an arrest, but without a warrant, was a step too far.  The Court found the need for police officer safety and potential destruction of data was outweighed by the strictures of the Fourth Amendment.  The Court however declined to answer the question of whether the police could intercept or observe data being emitted from the phone without a warrant. 
In U.S. v. Carpenter, the Court is now being asked to answer this question directly.  The decision may have important ramifications for law enforcement, because it may affect the surveillance practices of government agencies that rely on collecting this type of information.     The decision is also expected to provide guidance on what type of information should be considered “private” in an era marked by rapid technological change.