Bloomberg Law’s® extensive network of reporters and editors helps subscribers to stay ahead of legal
After getting bad reception on appeal, three armed robbers are looking for better service in a place where mobile phones aren’t even allowed: the U.S. Supreme Court ( Carpenter v. United States, U.S., No. 16-402 , Graham v. United States, U.S., No. 16-6308 , and Jordan v. United States, U.S., No. 16-6694 ).
Their cases represent one of the latest applications of old law to new technology.
The defendants are asking the Justices to impose a burden on law enforcement that currently doesn’t exist: a warrant requirement for historical cell site location information.
Cell site location information, or “CSLI,” shows which cell towers were used to service particular mobile phones. Because it’s usually the closest cell tower that gives a phone its signal, the government can use CSLI to help prove someone used a mobile phone in a given area.
Warrants aren’t needed to get site location data, federal appeals courts across the country have held.
A ruling for the defendants “would mark a sea-change” in Fourth Amendment law, professor Christopher Slobogin, director of Vanderbilt Law School’s Criminal Justice Program, told Bloomberg BNA in an email.
Timothy Carpenter committed armed robberies in and around Detroit. Aaron Graham and Eric Jordan did the same in Baltimore.
All three men were convicted at trial based partly on cell site evidence.
Using court-authorized orders, law enforcement got CSLI from the defendants’ phone carriers to show they were near the robberies when they occurred.
To get a court order, the government needs to show the CSLI requested is “relevant and material to an ongoing criminal investigation.”
Warrants are subject to the more stringent “probable cause” standard.
The government should’ve gotten warrants for location information, not just court orders, the defendants argued on appeal to the federal circuit courts.
But the “third party doctrine” says the Fourth Amendment doesn’t apply to CSLI, so the government doesn’t need a warrant to get it, the Fourth and Sixth circuits held when they affirmed the convictions.
Location information is voluntarily given by mobile phone users to phone companies—the third party—and law enforcement just gets the information from the phone companies, the courts explained.
That means there’s no “reasonable expectation of privacy” in the information voluntarily disclosed.
Such an expectation is required to trigger the Fourth Amendment warrant requirement, the courts said.
The novel question the Supreme Court could examine in the cases is whether getting CSLI from phone carriers counts as a “search” under the Fourth Amendment.
If it does, as the defendants argue, then the Fourth Amendment applies and a warrant is required. If it doesn’t, as the government argues, then the status quo remains and law enforcement can still get CSLI with court orders.
The answer to the “search” question might hinge on whether the CSLI cases are more like two 1970s cases or two cases from this decade.
Law enforcement didn’t need warrants, the Supreme Court held in the older cases, because they got the information from third parties: the bank and the phone company.
The government says the CSLI cases are like the older third party cases. Because CSLI information is given to third party phone companies, the Fourth Amendment doesn’t apply, the government argues.
The defendants say their cases are like the more recent ones that held the Fourth Amendment applies, due to the sheer amount of data and the nature of information CSLI can reveal.
One of the two more recent cases, Riley, “was the first time the Supreme Court explicitly recognized that mobile phones are like computers and homes and thus deserve full Fourth Amendment protection,” Slobogin told Bloomberg BNA.
“The court could build on Riley” in the CSLI cases “and hold that discovering historical location data is like searching the content of a cell phone and thus is a Fourth Amendment search requiring a warrant,” Slobogin said.
But the court “could also decide that location information is in the possession of a third party, and thus is not associated with an expectation of privacy, under the court’s third party doctrine,” which could mean that warrants aren’t needed for CSLI, he said.
Justice Sonia Sotomayor questioned the validity of the third party doctrine in her concurring opinion in Jones, the case where the Supreme Court held warrants are needed for real-time GPS vehicle tracking.
“[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” she wrote.
Yet, none of the other justices joined Sotomayor’s concurrence in Jones, so the circuit courts in the CSLI cases said they had to apply the third party doctrine.
Additionally, the armed robbers knew they exposed their locations to their phone carriers, the circuit courts said when they upheld the convictions.
But most mobile phone users don’t know they’re disclosing location information, according to a 2016 article published in the Northwestern University Law Review. The author, assistant professor Matthew Tokson of Chase College of Law in Kentucky, relied on survey data to make the point.
That could lead the Supreme Court to hold warrants are necessary for CSLI, Tokson, who clerked for two Supreme Court Justices, told Bloomberg BNA in an email.
The Supreme Court usually takes cases to resolve conflicting opinions in the lower courts.
All of the federal circuits to consider the issue held warrants aren’t needed for CSLI, so there’s nothing for the Supreme Court to resolve, according to the government’s briefs opposing the CSLI petitions.
Yet, there actually is a conflict in the lower courts, at least in terms of their reasoning, the defendants argued to the Supreme Court, in an effort to get their cases heard and convictions overturned.
But if there isn’t a real conflict, why would the Supreme Court think about hearing the CSLI cases?
Chief Justice John G. Roberts may want to provide definitive guidance on the CSLI question, Boston College Law Professor Robert Bloom, who has written about the Fourth Amendment’s application to CSLI, conjectured.
Roberts wrote the opinion in Riley, which set the national standard requiring warrants to search mobile phones of people who are arrested.
Some of the delay might owe to the court’s struggle with “constantly evolving communications technology,” or “the absence of a ninth member,” Slobogin speculated, referring to the recent arrival of Justice Neil M. Gorsuch in April.
Tokson echoed that sentiment, noting that “potentially significant or interesting cases might have been re-listed so that Justice Gorsuch could weigh in on them.”
Or “a justice is drafting a dissent from the denial of cert,” Tokson said, referring to the practice of Supreme Court justices sometimes writing separate opinions to argue why the court should’ve taken a case when the other justices disagree.
Four justices must agree to hear a case, but the vote tally isn’t made public.
The justices will next consider whether to hear the CSLI cases at their May 11 conference.
To contact the reporter on this story: Jordan S. Rubin in Washington at email@example.com
To contact the editor responsible for this story: C. Reilly Larson at firstname.lastname@example.org
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)