On November 29, 2017, the U.S. Supreme Court heard oral argument in United States v. Carpenter, a case that could fundamentally change the way the government collects, uses, and tracks individuals’ location information generated by their use of a cell phone.
The Supreme Court opened its term with a criminal matter that would permit the Court to tackle privacy rights in the digital age and explore what types of data law enforcement should be permitted to access without first obtaining a warrant for such information. Carpenter is an appeal from a decision of the U.S. Court of Appeals for the Sixth Circuit, which held in April 2016 that the warrantless collection by law enforcement of historical cell-site location data did not violate the Fourth Amendment to the U.S. Constitution.
In the district court and before the Sixth Circuit, Timothy Carpenter challenged the constitutionality of law enforcement’s collection and search of his historical cell-site location data over a period of 127 days. The government, which obtained the data without a warrant, used the historical location information at trial to prove that Carpenter was located within a half mile to two miles of several robberies at the times the robberies occurred. Carpenter was ultimately convicted of nine armed robberies in violation of the Hobbs Act. On appeal, the Sixth Circuit rejected Carpenter’s privacy argument, finding instead that the cell-site location information qualifies as routinely collected business records that can be obtained by law enforcement without a warrant consistent with the Fourth Amendment. The Sixth Circuit’s opinion is available here.
The heart of Carpenter’s argument to the Supreme Court was that the warrantless seizure and search of historical cell phone records revealing the location and movements of the cell phone user over an extended period violates the Fourth Amendment. During oral argument, the government argued that the collection of this data for any period of time is not a violation of the Fourth Amendment, likening the case to United States v. Miller, 425 U.S. 435 (1976), in which the Supreme Court held that the warrantless search and seizure by law enforcement of an individual’s banking records does not violate the Fourth Amendment. Although the government also attempted to analogize the recovery of historical cell-site location information in this case to simple “old-school” surveillance of a suspect, the issue presented here is arguably more nuanced. As noted by a couple of the Justices during questioning at argument, unlike old-school surveillance, the cell-site data location information gives law enforcement a tool it has never had before—not only is law enforcement able to obtain your location or whereabouts as might also be achieved by physical surveillance, but law enforcement is now able to reach back in time and obtain this information countless months after the fact.
Counsel for Carpenter also emphasized that the information at issue was both more sensitive in nature and less voluntarily given than the bank records or information that is permitted to be obtained without a warrant in Miller, based on the view that ownership and maintenance of some cellular telephone or other electronic device is a necessity to live in and conduct business in the world today. Finally, Carpenter’s counsel drew analogies with another precedent, United States v. Jones, 565 U.S. 400 (2012), in which Justice Scalia, writing for a unanimous Court, held that the unauthorized and warrantless placement of a GPS tracking device on a vehicle to track a suspect’s movement on public streets for twenty-four hours of surveillance constituted a violation of the Fourth Amendment and an impermissible trespass on the suspect’s private property. During oral argument in Carpenter, Justice Gorsuch’s questions seemed aimed at a similar property rights or trespass approach to the issue.
Regardless of the outcome, a decision in this case is much anticipated as it has the potential to monumentally shift the privacy arena, and could help shape and define our expectations of privacy in this new and quickly evolving digital age. We will continue to monitor the case and will provide an update once an opinion issues.
Audio recording of the oral argument in Carpenter v. United States, case number 16-402, is available here, and a transcript of the proceeding is available here.
