22 Jun Supreme Court Decides Cell-Site Location / Fourth Amendment Case
Posted in Case Notes, Commentary
In a 5-4 decision which resulted in 4 separate dissents, today, the Supreme Court held in Carpenter v. United States that the government conducts a search for the purposes of the Fourth Amendment when it obtains a cell phone user’s cell-site location information (CSLI) from a third party wireless provider. Although the Court explained the Orwellian implications of allowing the government to have “near perfect” retrospective surveillance of a user, “as if it had attached an ankle monitor to the phone’s user,” it also claimed that its decision was narrow and would not implicate police use of this data for emergency or exigent circumstances (such as a bomb threat, active shooter, or child abduction). But the bottom line is that for the mine run of police investigations, police will need to obtain a warrant before getting a suspect’s CSLI from a third-party provider. And other data that police collect from third parties if it is deemed to have a significant privacy implication could also require a warrant.
In this case, the FBI arrested four men suspected of committing a string of armed robberies. One man confessed. The robber who confessed to the crimes gave the FBI his own cellphone number and the numbers of other participants; the FBI then reviewed his call records to identify still more numbers that he had called around the time of the robberies.
The FBI then applied for orders from magistrate judges to obtain “transactional records” from various wireless carriers for 16 different phone numbers, which included the cell-site location data. The magistrates granted the applications pursuant to the Stored Communications Act, under which the government may require the disclosure of certain telecommunications records when “specific and articulable facts show that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d).
Ultimately, the defendants were convicted of violating the Hobbs Act, based, in part, on cell-phone records revealing the location and movements of their cell-phones over the course of 127 days. At the time, the CSLI was able to show that they were within a half-mile to two miles of the location of each of the robberies around the time the robberies happened and the government used this fact to argue they were guilty. (This technology has vastly improved since then and CSLI can now pinpoint someone within 50 meters or less).
The Sixth Circuit held that Carpenter lacked a reasonable expectation of privacy in the CSLI collected by the FBI because he had shared that information with his wireless carriers. Given that cell phone users voluntarily convey cell-site data to their carriers as “a means of establishing communication,” the court concluded that the resulting business records are not entitled to Fourth Amendment protection.
In an opinion authored by Chief Justice Roberts, the Supreme Court reversed. The Court began by explaining the historical context through which Fourth Amendment cases are analyzed even where new or sophisticated technology is at issue. The Court explained that “as technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes, this Court has sought to assure[ ] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” (internal quotations omitted).
The Court explained that that the issue in this case “lie[s] at the intersection of two lines of cases…” The first set of cases involve an individual’s privacy interest in his or her physical location and movements and the second involves the so-called “third party doctrine,” which says that an individual does not have an expectation of privacy in information like bank records or the phone numbers he or she dials when that information is voluntarily turned over to a third party (i.e., banks and phone companies).
While acknowledging that the fact that an individual “continuously reveals his location to his wireless carrier implicates the third-party principle,” the Court declined to extend this principle to “a detailed and comprehensive record of the person’s movements.” The Court concluded that an individual “maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.” The Court, noting that cellphones are essentially a part of human anatomy now, reasoned that this technology would allow the government to retrospectively obtain “an all-encompassing record of the holder’s whereabouts,” which provides “ an intimate window into a person’s life, revealing not only his particular movements, but through them his familial, political, professional, religious, and sexual associations.” (internal quotations omitted).
Further, the Court noted that this “newfound tracking capacity” would run against all 400 million devices in the United States. Anyone could become a suspect and when they do, that person “has effectively been tailed every moment of every day for five years, and the police may—in the Government’s view—call upon the results of that surveillance without regard to the constraints of the Fourth Amendment.” Finally, in explaining why the third-party doctrine does not apply to this category of information, the Court noted that the doctrine does not mean that “the Fourth Amendment falls out of the picture entirely,” but rather that an individual has a “reduced expectation of privacy.” Here, the Court explained, the CSLI contains information that is incredibly revealing in nature, unlike the non-confidential bank records or 10-digit phone numbers at issue in the Court’s prior rulings.
The Court also stressed that it’s decision was narrow and involved a unique case. It specifically noted that its decision would not disturb things like “conventional surveillance techniques” like security cameras. Further, although a warrant was required in this case, the Court explained that the government will still be able to use subpoenas to acquire records in the “overwhelming majority of investigations” and that it is only the rare case that a warrant is required where a third party holds records that a suspect has a “legitimate privacy interest” to. Finally, the Court noted that its decision does not “call into doubt” “well recognized exceptions” to the warrant requirement such as when exigencies exist including the need to “pursue a fleeing suspect, protect individuals who are threatened with imminent harm, or prevent the imminent destruction of evidence”
Justices Kennedy, Alito, Gorsuch, and Thomas all wrote separate dissents. Justice Kennedy would have applied the third-party doctrine and would have found no Fourth Amendment violation occurred here He explained his concerns with the majority’s opinion as follows: “The new rule the Court seems to formulate puts needed, reasonable, accepted, lawful, and congressionally authorized criminal investigations at serious risk in serious cases, often when law enforcement seeks to prevent the threat of violent crimes. And it places undue restrictions on the lawful and necessary enforcement powers exercised not only by the Federal Government, but also by law enforcement in every State and locality throughout the Nation. Adherence to this Court’s longstanding precedents and analytic framework would have been the proper and prudent way to resolve this case.”
To read the Court’s decision, click here.