The United States Supreme Court recently agreed to hear an appeal in a case that could have huge implications on cellphone privacy. A man named Timothy Carpenter was convicted of armed robberies in Ohio and Michigan after police discovered the man was in the approximate area of the robberies during the times they were committed. The police had obtained the “cell site location information” from Carpenter’s cellular service provider without a warrant. Cellular service providers are able to determine the approximate location of their customers by looking at which local cellphone towers the customer’s cellular device is connecting to.
Every year, law enforcement requests tens of thousands of records of cell site location information from users of each of the major cellular service providers in America, such as Verizon, AT&T, Sprint, and T-Mobile. The requests to cellular service providers for cell site location information by law enforcement are rarely denied. The records law enforcement obtained on Carpenter’s cellphone location went back 127 days and revealed nearly 13,000 separate location points. The location information revealed private information, such as where Carpenter attended church.
The Carpenter case is among several cases in recent years that the Supreme Court has taken up which concerns digital privacy and location privacy. In 2012, the Supreme Court unanimously ruled that law enforcement is generally required to obtain a warrant before using GPS tracking technology on a suspect. Two years later, in 2014, the Supreme Court unanimously ruled in the case of Riley v. California that law enforcement needed a warrant to search a suspect’s cellphone.
With the 1976 case of United States v. Miller and the 1979 case of Smith v. Maryland, the Supreme Court created the “third party doctrine”. Under the Supreme Court’s third party doctrine, once a person discloses information to a third party, it is no longer protected by the 4th amendment. A federal law passed in 1986, known as the Stored Communications Act, requires law enforcement to obtain a subpoena from a court in order to access data such as cell site location information from a third party. Privacy advocates disagree with the court’s third party doctrine and the Stored Communications Act, as they do not require probable cause and a warrant, as required by the 4th amendment. Probable cause and a warrant is not required in order to obtain a subpoena for information under the Stored Communications Act.
The appellant, Timothy Carpenter, is being represented by the American Civil Liberties Union (ACLU). “Because cellphone location records can reveal countless private details of our lives, police should only be able to access them by getting a warrant based on probable cause,” Nathan Freed Wessler, a lawyer from the ACLU’s Speech, Privacy and Technology Project said in a press release. “The time has come for the Supreme Court to make clear that the longstanding protections of the 4th Amendment apply with undiminished force to these kinds of sensitive digital records.”
In a brief submitted to the court, the Trump administration stated that it opposes the requirement of a warrant based on probable cause in order for law enforcement to obtain cell site location information from cellular service providers. The Trump administration believes that society has a compelling interest in acquiring the cell site location information without a warrant. The administration believes requiring a warrant would slow down law enforcement’s ability to apprehend suspects early on in investigations.
The 9th Circuit Court of Appeals recently heard the case of United States v. Gilton, which raised similar issues. In 2015, the Supreme Court declined to hear an appeal in the case of United States v. Davis, where the 11th Circuit Court of Appeals ruled a warrant was not required for cell site location information.The appeal to the Supreme Court in the case of Carpenter v. United States, No. 16-402 will be decided sometime between October of this year and June of next year, during the Supreme Court’s next term. The Supreme Court is likely to also hear other digital privacy cases in the near future, such as cases involving whether a suspect can be required to reveal the password or PIN to their cellphone or other electronic device.