Ride the Lightning

Supreme Court Requires Warrant to Get Cell Phone Location Data

January 23, 2019

Carpenter v. United States is not exactly news. The decision, from June of 2018, was a landmark win for privacy and one of the most important cases in the eDiscovery world from last year. I was reminded of this Monday when John and I interviewed Doug Austin, the acclaimed author of Cloud Nine's eDiscovery Daily Blog for our Digital Detectives podcast and reviewed some of the top developments of 2018. I'll be sure to let you know when that podcast goes live – it is a great way to catch up on the eDiscovery headlines from last year.

Interviewing Doug reminded me that I had never blogged about this case – time to remedy that!

In this 5-4 decision, the justices said police need warrants to gather phone location data as evidence for trials. That reversed and remanded a decision by the Sixth Circuit Court of Appeals.

Carpenter v. United States is the first case about phone location data that the Supreme Court has ruled on.

The dispute dates back to a 2011 robbery in Detroit, after which police gathered months of phone location data from Timothy Carpenter's phone provider. They pulled together 12,898 different locations from Carpenter, over 127 days.

The legal and privacy concern was that police gathered the four months' worth of Carpenter's digital footprints without a warrant. A Sixth Circuit Court of Appeals judge ruled that cellphone location data isn't protected by the Fourth Amendment, which forbids unreasonable search and seizure, and therefore didn't require a warrant.

In the Supreme Court's ruling, Chief Justice John Roberts wrote the government's searches of Carpenter's phone records were considered a Fourth Amendment search. "The government's position fails to contend with the seismic shifts in digital technology that made possible the tracking of not only Carpenter's location but also everyone else's, not for a short period but for years and years," he wrote.

Roberts said allowing government access to historical GPS data infringes on Carpenter's Fourth Amendment protections and expectation of privacy, by providing law enforcement with an "all-encompassing record" of his whereabouts. He added that historical GPS data presents an "even greater privacy risk" than real-time GPS monitoring.

Carpenter's attorneys, including lawyers from the American Civil Liberties Union, argued before the Supreme Court that cellphone location data constitutes sensitive digital records and should be protected under the Fourth Amendment.

"This is a groundbreaking victory for Americans' privacy rights in the digital age," ACLU attorney Nathan Freed Wessler, who argued the case, said in a statement. "The Supreme Court has given privacy law an update that it has badly needed for many years, finally bringing it in line with the realities of modern life. The government can no longer claim that the mere act of using technology eliminates the Fourth Amendment's protections."

The losing argument was that phone companies can provide customers' data to law enforcement because they own those records, not the person. During the trial, US Deputy Solicitor General Michael Dreeben told the Supreme Court that people agree to hand over their information to providers for their service.

Before the trial took place, major tech companies, including Apple, Facebook and Google, filed a friend-of-the-court brief with the Supreme Court, urging the justices to make it harder for law enforcement officials to obtain individuals' data without a warrant.

While the decision sets a ruling for historical GPS data, the Supreme Court said it does not apply to security cameras, business records or real-time location tracking.

As Doug said in our Monday interview, a move toward protecting data privacy was one of the major trends of 2018- a trend which is likely to be with us for the foreseeable future.

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