The U.S. Supreme Court confronts the digital age again on Wednesday when it hears oral arguments in a case that promises to have major repercussions for law enforcement and personal privacy. Here is the Appellant Brief
At issue is whether police have to get a search warrant in order to obtain cellphone location information that is routinely collected and stored by wireless providers.
Carpenter v. United States is a pending case before the United States Supreme Court and raises the question of whether the government violates the Fourth Amendment to the United States Constitution by accessing an individual’s historical cell phone locations records without a warrant. On June 5, 2017, the Court agreed to review this case when it granted Carpenter’s petition for writ of certiorari. Oral argument before the Supreme Court is scheduled for Wednesday, November 29, 2017. By some, the case is considered the most important Fourth Amendment case that the Supreme Court has heard in a generation.
In 2011, the FBI was investigating a series of armed robberies at Radio Shack and T-Mobile stores in and around Detroit. The FBI agents suspected Timothy Carpenter of working as a getaway driver for the robbers. They sought location data for Carpenter’s cell phone, which showed that Carpenter was near each of the robberies when they were happening. Carpenter argued in court that tracking his location using his cell phone was unconstitutional. The government pushed back with a bold legal claim. It argued that it can use cell phones to track the location of anyone it wants at any time, without violating the Constitution.
The Sixth Circuit Court of Appeals agreed with the government. It concluded that the Fourth Amendment’s warrant requirement did not apply to cell-phone tracking. Because Carpenter has no privacy or property rights in the location data that his phone transmits, and because the data does not reveal the contents of Carpenter’s phone calls, the government can obtain it without a warrant. Out of options, Carpenter filed a petition at the Supreme Court.
Up until now, the Supreme Court has stuck with the framework it adopted nearly 40 years ago that distinguishes between material in one’s home or car, and material that is out in the open, or shared with others. But as Justice Sonia Sotomayor suggested in a case five years ago, the entire framework used in the past may well be “ill-suited to the digital age.”
She said that because people now “reveal a great deal of information about themselves in order to carry out mundane tasks,” it may be time to reconsider past decisions that allow police to get information without a warrant from third parties like phone companies or banks or e-mail providers.