U.S. Supreme Court Poised to Make Sweeping Decision on the Privacy of Location Data

TechLawLogy™: eDiscovery and Privacy Blog

Braxton Padgett
Thursday, 28 December 2017

Figuring out how innovative technologies fit within the framework of those constitutional protections guaranteed by the Bill of Rights has been an ongoing dilemma for courts. Electronic surveillance has been particularly troublesome, as new technologies allow law enforcement to obtain information that would previously have been unreachable, calling into question the extent to which the Fourth Amendment protects individuals against such intrusions. The U.S. Supreme Court now stands on the precipice of making a decision that could have a profound impact on the privacy of digital information.

Without a warrant, prosecutors obtained data from the defendant’s cell phone carrier, allowing them to track his movements over a 127-day period.

In the case, Carpenter v. U.S., the defendant, Timothy Carpenter, was arrested and later convicted for his participation in a series of robberies that occurred in Michigan and Ohio. Prosecutors were able to put Carpenter at the scene of these robberies by using historical cell-site data it obtained from Carpenters cell phone carrier. The data allowed the government to identify which cell towers routed calls made to and from Carpenter’s cell phone. Spanning a 127-day period, the government collected data on 12,898 points tracking Carpenter’s location. Rather than obtaining a warrant, which would have required the prosecutors in the case to meet a higher burden of showing probable cause, they obtained a judicial order under Section 2703(d) of the Stored Communications Act.

Carpenter appealed the case, arguing that his Fourth Amendment rights were violated because the government conducted an illegal search by not obtaining a warrant. He has specifically conceded that short-term monitoring of cell phone location data is not a “search” under the Fourth Amendment, but he argues that longer-term monitoring, like the type the government used on him, is a “search” requiring a warrant. The government argues that individuals do not have legitimate expectation of privacy in data–such as the historical cell-site data at issue in the case–that they voluntarily allow service providers to collect. Therefore, according to the government, it did not need a warrant to access this information.

There is some precedence to back up Carpenter’s arguments. In 2012, the Supreme Court held that a GPS monitor placed on a suspected drug dealer’s car was an unreasonable search where the government monitored him for 28 days. A 2014 case found that police violated the Fourth Amendment by going through the cell phone contents of an arrestee without first obtaining a warrant. On the other hand, the long standing third-party doctrine allows the government, without a warrant, to obtain information that individuals voluntarily turn over to third-parties. Here, the government argues that Carpenter voluntarily allowed his cell carrier to collect historical cell-site data. Carpenter has tried to make the distinction that cell phone users have virtually no choice but to reveal this information to cell carriers. In deciding the Carpenter case, the justices will have to weigh the privacy interests of the defendant on the one hand against the need for law enforcement to adequately perform their duties on the other. Further, the justices will have to address Fourth Amendment precedents that are becoming increasingly difficult to reconcile with the changing nature of privacy interests in the digital age.

Depending on how broadly the Supreme Court decides the case, Carpenter could have far-reaching effects on the privacy of digital information.

Many people have their eyes on this case because of its potential implications. In the cloud-computing age, the public surrenders considerable amounts of personal information to third-parties. Should the Supreme Court side with the government on this issue, the effects could reach far beyond historical cell-site data. This will largely depend on how broadly or narrowly the Court decides the case. The Supreme Court could render an opinion that addresses only the collection of historical cell-site data, or it could issue an opinion that will have ramifications affecting other types of information stored by third-parties. The Supreme Court held oral arguments for the case on November 29th and will issue an opinion next year.

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