ByFrank Camp

On Friday, the Supreme Court ruled in a 5-4 decision that government investigators must “generally” obtain a warrant in order to gain access to an individual’s cell-site location information (CSLI).

According to NPR, “a series of armed robberies in 2010 and 2011 … aimed at stealing hundreds of new cellphones and selling them for tens of thousands of dollars” led to multiple arrests. One of the detained suspects gave investigators the cell phone numbers of several other individuals who allegedly acted in the crimes. Using these numbers, authorities sought and were granted “court orders” under the Stored Communications Act in order to access the cell phone location records of a man named Timothy Carpenter.

According to the syllabus from the SCOTUS decision:

Carpenter moved to suppress the data, arguing that the government’s seizure of the records without obtaining a warrant supported by probable cause violated the Fourth Amendment. The District Court denied the motion, and prosecutors used the records at trial to show that Carpenter’s phone was near four of the robbery locations at the time those robberies occurred. Carpenter was convicted. The Sixth Circuit affirmed, holding that Carpenter lacked a reasonable expectation of privacy in the location information collected by the FBI because he had shared that information with his wireless carriers.

The Stored Communications Act only demands that officials show “reasonable grounds” rather than “probable cause” when seeking certain types of information. The standard for “reasonable grounds” is lower than “probable cause.”

18 U.S. Code 2703 subsection (d) states in part: “A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”

The Fourth Amendment, however, states in part that “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.”

In his majority opinion ruling against the lower courts, Chief Justice John Roberts wrote in part (some citations omitted for clarity):

When an individual “seeks to preserve something as private,” and his expectation of privacy is “one that society is prepared to recognize as reasonable,” we have held that official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause. Smith, 442 U.S., at 740…

The case before us involves the Government’s acquisition of wireless carrier cell-site records revealing the location of Carpenter’s cell phone whenever it made or received calls. This sort of digital data – personal location information maintained by a third party – does not fit neatly under existing precedents. Instead, requests for cell-site records lie at the intersection of two lines of cases, both of which inform our understanding of the privacy interests at stake.

Roberts then wrote about two prior cases in which investigators used bank records and a pen register. It was decided that the tactics used in these cases did not violate the Fourth Amendment.

This led Roberts to write about “third-party” doctrine:

We have previously held that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith 442 U.S., 743-744. That remains true “even if the information is revealed on the assumption that it will be used only for a limited purpose.” United States V Miller, 425 U.S., 435, 443 (1976). As a result, the Government is typically free to obtain such information from the recipient without triggering Fourth Amendment protections.

This third-party doctrine largely traces its roots to Miller. While investigating Miller for tax evasion, the government subpoenaed his banks, seeking several months of cancel checks, deposit slips, and monthly statements. The Court rejected a Fourth Amendment challenge to the records collection. For one, Miller could “assert neither ownership nor possession” of the documents; they were “business records of the banks.” For another, the nature of those records confirmed Miller’s limited expectation of privacy, because the checks were “not confidential communications but negotiable instruments to be used in commercial transactions,” and the bank statements contained information “exposed to [bank] employees in the ordinary course of business.” The Court thus concluded that Miller had “take[n] the risk, in revealing his affairs to another, that the information [would] be conveyed by that person to the Government.”

Roberts later wrote about the Court’s role in interpreting the Fourth Amendment as it pertains to new technology:

The question we confront today is how to apply the Fourth Amendment to a new phenomenon: the ability to chronicle a person’s past movements to the record of his cell phone signals. … Much like the GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic, and effortlessly compiled.

At the same time, the fact that the individual continuously reveals his location to his wireless carrier implicates the third-party principle of Smith and Miller. But while the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records. After all, when Smith was decided in 1979, few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements.

We decline to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology … or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. The location information obtained from Carpenter’s wireless carriers was the product of a search. …

Having found that the acquisition of Carpenter’s CSLI was a search, we also conclude that the Government must generally obtain a warrant supported by probable cause before acquiring such records.

This was a contentious decision. NPR notes that “in a rare move,” the four dissenting Justices – Kennedy, Alito, Thomas, and Gorsuch – wrote separate dissents.

Roberts did note that “case specific exceptions” may be made:

Such exigencies include the need to pursue a fleeing suspect, protect individuals who are threatened with imminent harm, or prevent the imminent destruction of evidence.

Friday’s decision, as close and as narrow as it was, is a significant win for advocates of personal privacy and the Fourth Amendment. There are those who will continuously attempt to use our rapid technological advancement in order to circumvent the constitutional rights of the American people. On Friday, SCOTUS was able to stop such behavior in its tracks – at least in a very specific context.