Recently, the Supreme Court agreed to hear a case that could determine whether the government can use information obtained from cell phone companies to find out a person’s location – and whether they can do this without a warrant. In the past, the highest court has prevented government authorities from using GPS devices to track someone’s movement. Additionally, the court has ruled that authorities must get a warrant before searching the contents of a suspect’s phone. The case in question, Carpenter v. United States, will consider whether an officer can access a cell phone’s historical data (up to 127 days) in order to see where a person has been, so that a suspect can be located near the scene of a crime.
A 1979 case, Smith v. Maryland, found that a person suspected of robbery could not expect the numbers dialed from his phone to be protected by the right to privacy. In its reasoning, the court argued that the suspect voluntarily gave the information to the cell phone company just by being a customer of that company. This has come to be known as the third-party doctrine.
Federal appeals courts cited Smith in their decisions, arguing that a person voluntarily gives up their data to the cell phone company when they become a customer and therefore no warrant is needed in acquiring data indicating patterns of movement. Under the Stored Communications Act (SCA), a key statute in this case, prosecutors are required to get approval from a court before obtaining tracking data. However, to get court approval, prosecutors don’t need to demonstrate probable cause as is the case with a warrant. Rather, according to the SCA, they only need to show that there were “specific and articulable facts showing that there are reasonable grounds to believe” that the data “are relevant and material to an ongoing criminal investigation.”
The Specifics of the Case
The SCA loomed large in the case of Timothy Carpenter, who was accused of leading a series of armed robberies in Ohio and Michigan. Using the SCA, the government obtained cell phone records for 16 phone numbers. One of those numbers belonged to Carpenter. Using this data, officers were able to uncover several months of cell-site records. Law-enforcement officials were then able to determine that between 2010 and 2011, Carpenter’s phone connected to cell towers in proximity to the robberies in question.
Lower Court’s Decision
In making its decision, the United States Court of Appeals for the Sixth Circuit found “that the government’s collection of business records containing cell-site data was not a search under the Fourth Amendment.” However, the court wrestled with the problem of fluctuating “public attitudes toward new and evolving technology.” And in the final page of her concurrence, Judge Jane Strance noted that “we have more work to do to determine the best methods for assessing the application of the Fourth Amendment in the context of new technology.”
The United States Court of Appeals for the Fourth Circuit argued in a similar case that Smith was binding and that applying the stricter standards of a warrant “risks an imbalance of the most dangerous sort, for it allows criminals to utilize the latest in technological development to commit crime and hamstrings the ability of law enforcement to capitalize upon those same developments to prevent crime.” The Fourth Circuit added that the Supreme Court could eventually extinguish the third-party doctrine, “but without a change in controlling law, we cannot conclude that the Government violated the Fourth Amendment in this case.”
Carpenter v. United States will be heard by the Supreme Court during the term beginning in October.