SCOTUS Takes Up ‘Huge’ Mobile Phone Data Case

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By Jordan S. Rubin

The Supreme Court June 5 agreed to take on the next big case involving Fourth Amendment protections in the digital era ( Carpenter v. United States, U.S., No. 16-402, review granted 6/5/17 ).

The high court could use Timothy Carpenter’s case to decide if warrants are needed to collect mobile phone location records during criminal investigations.

Regardless of the outcome, the court’s decision to take Carpenter’s case is “extremely significant,” professor Stephen E. Henderson of University of Oklahoma College of Law in Norman, Okla., told Bloomberg BNA via email.

“The implications for citizens’ privacy are huge,” professor Matthew Tokson of Chase College of Law in Newport, Ky., told Bloomberg BNA via email.

No Warrant Needed, Lower Courts Say

Carpenter was convicted at trial of several armed robberies. Prosecutors used Carpenter’s cell site location information to show he was near the robberies when they occurred. They got the data from his service provider.

Law enforcement didn’t get a warrant for the data, which would have required a showing of probable cause under the Fourth Amendment. But they did get a court order, signed by a judge, under a less stringent standard requiring proof that the CSLI was “relevant and material to an ongoing criminal investigation.”

A warrant isn’t needed for historical CSLI under the “third party doctrine,” the Sixth Circuit said when it affirmed Carpenter’s convictions.

Because he voluntarily gave his CSLI to a third party—the service provider—and law enforcement got the data from the service provider, it’s not a “search” under the Fourth Amendment requiring a warrant, the Sixth Circuit said.

Federal circuits across the country have agreed with the Sixth Circuit.

SCOTUS Leaving the (Third) Party?

The third party doctrine dates back to the 1970s, when the Supreme Court upheld the warrantless acquisition of information in two landmark cases: bank information in United States v. Miller, and numbers dialed from a landline phone in Smith v. Maryland.

Law enforcement didn’t need warrants in those cases because they got the information from third parties—the bank and the phone company—the Supreme Court said.

But more recently, the high court held that warrants are required to search the mobile phones of arrested individuals, in Riley v. California, and for real-time GPS vehicle tracking, in United States v. Jones.

Justice Sonia Sotomayor questioned the continuing validity of the third party doctrine in her solo concurrence in Jones.

It “may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” Sotomayor wrote.

The Supreme Court has “sidestepped and even ignored the third party doctrine for a quarter century as it became more and more inappropriate to the information age,” Henderson, who is widely published on the Fourth Amendment and technology, told Bloomberg BNA.

“I am cautiously optimistic that a Court which has unanimously reaffirmed Fourth Amendment privacy rights in the last few terms—both for location tracking and searches of cell phones—will be willing to continue that commitment to working out how the fundamental rights of Americans apply in modern times,” he said, referring to Jones and Riley.

Whole New World Ahead?

Experts are unanimous about the potential significance of Carpenter’s case.

If the Supreme Court rules for Carpenter, “a whole new world of constitutional argument opens up against digital intrusions by the government,” Christopher Slobogin, director of the criminal justice program at Vanderbilt University Law School in Nashville, Tenn., told Bloomberg BNA via email.

“A decision for the prosecution would signal a Court reluctant to recognize a right to digital anonymity,” Slobogin said.

Professor Tokson, whose article on CSLI was published by the Northwestern University Law Review in 2016, agreed that the case is momentous.

“The Court might directly rule on whether the third party doctrine is still good law, something it hasn’t done in decades,” Tokson said.

“If it affirms the third party doctrine, that means that the massive amounts of personal information that are exposed to third party equipment on the Internet—emails, websurfing, chat, cloud storage, search terms, and more—are likely to be unprotected by the Fourth Amendment,” he said.

“If the Court reverses the third party doctrine, it could overturn several previous Supreme Court cases like Smith,” he said.

Time Has Come, Defendants Say

“Because cell phone location records can reveal countless private details of our lives, police should only be able to access them by getting a warrant based on probable cause,” ACLU attorney Nathan Freed Wessler said.

“The time has come for the Supreme Court to make clear that the longstanding protections of the Fourth Amendment apply with undiminished force to these kinds of sensitive digital records,” he said.

The ACLU, along with Harold Gurewitz of Gurewitz & Raben PLC, Detroit, represents Carpenter at the Supreme Court.

The Department of Justice declined to comment on the Supreme Court’s decision to take Carpenter’s case.

The National Fraternal Order of Police and the Society of Former Special Agents of the FBI didn’t respond to requests for comment in time for publication.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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