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  • Abigail Forth

"Can You Find Me Now?" To What Extent Does Cellphone Use Records and Other Modern Day Data

In April 2011, law enforcement officers arrested four men suspected of robbing Radio Shacks and T-Mobile Stores in and around Detroit. One of the arrested men confessed to the robberies and provided the FBI with the cell-phone numbers of others who participated in the string of robberies. Based on this information, local magistrate judges issued orders under the Stored Communications Act of 1986, 18 U.S.C. § 2703(d), requiring multiple wireless carriers to provide the FBI with records of call origination and termination for all calls involving cellphones belonging to the suspects during the relevant time period. This included the cellphone towers, which the phones connected to for the calls. Wireless carriers track and keep this information to find weak spots in their network and apply roaming charges. With this information, the FBI was able to track the movements of Timothy Carpenter and place him near the robbed stores at the time of the crimes. The District Court rejected Carpenter's efforts to suppress the cell site location data based on a warrantless search violation of the Fourth Amendment and convicted him of violating the Hobbs Act of 1946, 18 U.S.C. § 1951.

A divided Sixth Circuit Court of Appeals upheld the district court’s judgment holding “that the government’s collection of business records containing cell-site data was not a search under the Fourth Amendment.” Carpenter filed a petition for certiorari with the United States Supreme Court mainly based on an individual’s “reasonable expectation of privacy” in the modern world's data rich environment. The Supreme Court was sympathetic to this line of reasoning in United States v. Jones where the Court held that installing a GPS tracker on a suspect’s car without a warrant was a violation of the Fourth Amendment. The Court granted certiorari to Carpenter to address the issue of whether the government can obtain cell-site location records without a warrant. The Court heard the case this past Wednesday, November 29, 2017.

Relying on Smith v. Maryland and United States v. Miller the government claims that obtaining cell site data without a warrant does not run afoul of Fourth Amendment based on the third party doctrine. In its brief the government states that the U.S. Supreme Court "has long held that an individual cannot invoke the Fourth Amendment to object to the government’s acquisition of a third party’s records that contain information about the individual.” In Smith v. Maryland, the Court held that there was not a Fourth Amendment violation when a landline phone company, at the police’s request without a warrant, recorded dialed phone numbers from the defendant’s home. In United States v. Miller, the Court held that the police did not violate a defendant's Fourth Amendment rights when without a warrant it obtained bank records that the defendant had voluntarily provided to the bank in the ordinary course of business.

The government maintains that Carpenter could not have a reasonable expectation of privacy in the cellphone data because his wireless provider collected this data for its own business needs. According to the government, Carpenter should have known that his wireless carrier would have access to data of his cellphone use. Importantly, this data does not include the contents contained within Carpenter's cellphone.

Carpenter rejects the third party doctrine on the basis that the modern technology embodied in the use of cellphones and the resulting data are fundamentally different than bank records or landline telephones. Cellphone records, according to Carpenter, are more private than the information ruled on previously by the Court due to the nature of the large amount of personal data contained in cellphones. Furthermore, the mere fact that a third party has access to information alone is not sufficient to remove it from the protection of the Fourth Amendment. The nature of the information must be assessed to determine “whether there is a legitimate expectation of privacy.” In addition, Carpenter contends that this case is analogous to United States v. Jones because the long term collection of these cell-site records allowed the government to go back and track Carpenter’s movements similar to placing a GPS on the defendant’s car in United States v. Jones.

Due to the possible far reaching implications of this case, many commentators have weighed in about how the Court should rule. In his amicus curiae brief, Professor Orin S. Kerr of George Washington University Law School argues that the Fourth Amendment does not apply to cell-site data records because the “collection of historical cell-site records is the network equivalent of unprotected observation of public space.” Professor Kerr contends that non-content cellphone information records of delivery of communications are the “equivalent of the publicly observable trip that is outside such [Fourth Amendment] protection in the physical world.” Professor Kerr also points out that “although the Fourth Amendment protects the contents of communication sent over a network, it does not protect non-content addressing information to use those contents.”

Fourteen of the largest technology companies in the Unites States have also filed amicus curiae briefs in which they favor stricter warrant requirements for law enforcement officers to obtain cellphone data. These companies argue that there is an expectation of privacy that comes with using cellphones because they are an important part of every American's daily life, and they often contain extensive personal details about the cellphone user. In their brief, the technology companies state that “[n]o constitutional doctrine should presume that customers assume the risk of warrantless government surveillance simply by using technologies that are beneficial and increasing integrated into modern life.”

How the Supreme Court rules on this case will have powerful implications to rapidly developing modern technology. Technology is in some way a part of everyone’s daily life. From smart phones, laptops, and wearable health and fitness activity tracker technology, data about our everyday communication, activities, habits, and relationships are recorded and shared with third parties. In earlier cases, the Court has already revealed its concern with allowing unlimited access to the collection of digital data that is occurring. In 2014, the court ruled in Riley v. California that police are generally required to obtain a warrant to search the cellphone of arrested individuals. Chief Justice Roberts wrote the opinion for the Court and stated that “modern cellphones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of the human anatomy.” Carpenter's supporters suggest that the law needs to catch up with the rapidly developing modern cellphones that contain user’s personal information and records the user’s every movement. How the Supreme Court rules on the applicability of the Fourth Amendment in this case will affect more than just historical cell site data records. The Court’s decision in this case will affect how government can access the digital information that is shared in “the cloud”, with cell-phone carriers, credit card companies, financial institutions, text messages, and internet searches.


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