Colin McCallin Aug. 29, 2017

Recently, the Supreme Court agreed to review a case out of the US 6th Circuit Court of Appeals that addresses Fourth Amendment rights and cell phones. The case is Carpenter vs. United States and is significant because it can change the way digital information is accessed by police and if the access would require a warrant. Moreover, the ruling on this case has the potential to strengthen or seriously weaken the protections afforded by the Fourth Amendment in regards to surveillance.

The Fourth Amendment states : The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

What was the Original Case About?

The Carpenter case is specifically about a group of conspirators, the lead named Carpenter, who stole cell phones via armed robberies of stores. One of these conspirators sold out the other 15 and provided police with their cell phone numbers. The police then obtained court orders for the cell-site records, which includes the locations of inbound and outbound calls. The police did comply with the statute that relates to this, called the Stored Communications Act, but this statute only requires reasonable suspicion, a lesser standard than probable cause which the Fourth Amendment requires.

The records produced from this search were numerous and tied Carpenter and the other conspirators to cell towers that were within 2 miles of all the locations robbed.

The Issue Before the Supreme Court

The question posed by this scenario is whether this is a Fourth Amendment search that requires police to obtain a proper warrant.

Carpenter is represented by the ACLU which argues that this is clearly a violation of Fourth Amendment seizure. On the other side, the government is arguing that these records, by virtue of being voluntarily stored by third parties, are effectively public and there is no expectation of privacy. Carpenter and the ACLU are arguing there is a reasonable expectation of privacy since one is forced to go about storing information in this manner because of the nature of the technology. You have to use third party storage and public, government-controlled airwaves for communication even if the data conveyed is private. In other words, the nature of information storage has changed and the law must adapt to acknowledge this. Emails may not be kept in a shoe box like your old letters, but they are still private and should require a warrant.

Briefs Filed in Support of Carpenter

The ACLU is not alone in this opinion. Several major organizations, from all sides of the political spectrum have filed amicus briefs in support of Carpenter. Groups like the libertarian Cato Institute, digital privacy group the Electronic Frontier Foundation, the Brennan Foundation for Justice, the National Association of Criminal Defense Lawyers, numerous tech companies including Apple and Verizon as well as conservative groups like Citizens United and Gun Owners Foundation have submitted statements in favor of Carpenter and against warrantless seizure of cell data.

One key point argued in several briefs is that digital information should be seen as papers or effects and as such would require warrants. Additionally, third party seizures, which allowed this cell tower search to occur in the first place, are no longer clearly applicable since people have a natural expectation of privacy that doesn’t change because information is now stored by third parties. Another brief indicates that cell tower info has become so precise that it is capable of painting a very vivid picture of the daily activities of individuals if law enforcement were to take an interest. This is where the question of police surveillance matters. Allowing access to cell records without warrants can amount to a detailed and very easy surveillance for law enforcement, and in turn would put citizens under watch for the normal use of their devices.

The Supreme Court will be hearing this case when they resume their next term in October.