Supreme Court ruling requiring warrant for cellphone searches could lead to a flood of lawsuits

By Michael Joseph on September 06, 2018

Carpenter v. United States is one of many cases involving the privacy of your cell phone data. In this case, police were able to obtain location data from a suspect's wireless provider using the lower standards of the Stored Communications Act (SCA) without the finding of "probable cause" required to issue a search warrant. The debate over what constitutes a reasonable expectation of privacy is shifting because today’s technology can tie so much sensitive data together.

On June 22, 2018, the Supreme Court ruled  in a 5-4 that the historical cell phone location data used to convict Timothy Carpenter of armed robbery is subject to Fourth Amendment protections.  The decision reversed a ruling by the U.S. Court of Appeals for the Sixth Circuit that Carpenter had no reasonable expectation of privacy in the location information that was conveyed to his provider. The appeals court grounded that decision in the third-party doctrine, first articulated by the Supreme Court in United States v. Miller (1976) and Smith v. Maryland (1979). In those cases, the High Court concluded that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."

Cell phone location data provides precise information about one's physical movements, made possible by the huge number of cell phone towers.  For instance, just within a one mile radius of the Supreme Court, cell phone signals are intercepted by any number of the 404 antenna and 50 towers within that radius, as frequently as every few seconds. The resulting information is then stored by a third-party provider for up to five years.

This tracking does not depend on the phone user making any calls. Any activity on the phone will cause the user to unwittingly transmit location data when the device automatically connects. This reality is the foundation of the court’s ruling that the third-party doctrine does not apply because cell phone data is not voluntarily conveyed. As Chief Justice John Roberts explained in the majority opinion, “a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the part of the user beyond powering up."

In Carpenter, the court relied on United States v. Jones, a 2012 case involving the attachment of a GPS device to a vehicle, which held that “an individual maintains a legitimate expectation of privacy in the record of his physical movements." However, the Carpenter case will hit on issues whether you can be compelled by law enforcement to use biometric data, like a fingerprint or facial scan, to open a device.  Courts will thus have to consider whether a person accused of wrongdoing can be required by the government to supply a fingerprint or facial scan to unlock an encrypted device, or whether that act should be covered by the Fifth Amendment protections against self-incrimination

The question that still remains to be addressed is whether law enforcement can compel someone to provide a password or other mechanism for opening a device, or even identifying it as theirs.

This decision has wide ranging implications for privacy, because the necessrity of obtaining a warrant will prevent the police from aimlessly tracking people's movements through their cell phones. These days people keep their lives on their cell phones  including sensitive data and information. Our White Plains criminal defense lawyers support this decision as the goverment continues to overreach and impinge on the basic civil liberties that are guaranteed by our Constitution.

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