Police Need a Warrant to Access Cell Tower Location Data
In Carpenter v. United States, last week the U.S. Supreme Court held that law enforcement must get a warrant based on probable cause before accessing cell tower location data for use in a criminal investigation.
During an investigation of multiple armed robberies of Radio Shack and T-Mobile stores, law enforcement obtained a court order under the Stored Communications Act, 18 U. S. C. §2703(d), which allows a court to order production of records when there are “reasonable grounds” to believe that the records are “relevant and material to an ongoing investigation.”
The Court found that the order to produce cell tower location data is a search within the meaning of the Fourth Amendment, that the standard of proof under the Stored Communications Act is significantly less than probable cause, and that the Fourth Amendment requires individualized suspicion and a search warrant based upon probable cause before law enforcement can access cell tower location data.
What Type of Information-Gathering is Covered by the Fourth Amendment?
The types of data-collection that are covered by the Fourth Amendment continue to grow as the courts consider an increasing number of new technologies each year.
Some require a search warrant, and some do not – what’s the difference and which types of data require a search warrant?
Why Do We Even Have a Fourth Amendment?
The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
The courts have been clear about its purpose – the U.S. Supreme Court has said that the Fourth Amendment is intended “to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.”
It was a direct response to, among other things, the British practice of “general warrants” and “writs of assistance,” which allowed British officials to search colonists’ homes without any individualized suspicion or probable cause that evidence of a crime would be found – the Fourth Amendment guarantees that our government will never again engage in the abuses to which the British government subjected the colonists.
The Fourth Amendment Protects People, Not Places
In a world where there were no smartphones, where the world was not connected to the internet, and where companies did not collect and store massive amounts of data about U.S. citizens, the Fourth Amendment was interpreted as preventing government officials from coming into your home or onto your property to search for evidence without probable cause.
The government was prevented from obtaining “information by physically intruding on a constitutionally protected area.”
Beginning with Katz v. United States, in 1967, the courts have recognized that technology has extended the areas where a person can reasonably expect privacy.
In Katz, the U.S. Supreme Court found that there was a reasonable expectation of privacy in a person’s conversations on a public payphone and that listening devices placed on a payphone by the government violates the Fourth Amendment – your right to privacy is not limited to the interior of your home.
The Court in Carpenter notes that the Fourth Amendment “seeks to secure ‘the privacies of life’ against ‘arbitrary power,’” and that the Framers intended “to place obstacles in the way of a too permeating police surveillance.”
Other examples of information-gathering that requires individualized suspicion and a search warrant include:
- Thermal imaging devices that detect heat levels in a house (to find evidence of marijuana grow operations) – Kyllo v. U.S.;
- A search of the contents of a person’s cell phone – Riley v. California; and
- GPS tracking devices that monitor a vehicle’s location – S. v. Jones.
What is Not Covered by the Fourth Amendment?
The courts have also declined to give Fourth Amendment protection to other, similar types of evidence-gathering by law enforcement, including situations where the defendant has voluntarily turned over information to third parties and the many exceptions to the Fourth Amendment’s warrant requirement.
The Third-Party Doctrine
The third-party doctrine assumes that “an individual has a reduced expectation of privacy in information knowingly shared with another,” even if the information is only provided for limited purposes.
For example, in U.S. v. Miller, in 1976, the U.S. Supreme Court held that law enforcement does not need a search warrant to obtain bank records in a tax evasion investigation, because the records were voluntarily provided to the bank. The defendant can no longer assert ownership of the documents because they are now the “business records of the bank,” which are revealed to bank employees “in the ordinary course of business.”
Three years later, in Smith v. Maryland, the U.S. Supreme Court held that there is no reasonable expectation of privacy in the contents of a “pen register” that records outgoing phone numbers that a person dials – again, it is information voluntarily provided by the owner of the telephone that then becomes a business record of a third party.
Why are Cell Tower Location Records Different?
Pen registers in 1979 consisted of simple records that contained only outgoing calls. Things have changed…
Cell tower location data can now be used to record the movements of a person, in real time, as their phone “pings” the tower constantly over time. This alone makes cell tower data more like a GPS monitor placed on a car than a pen register from 1979, and the Court has previously held that law enforcement must get a warrant before placing a GPS device on a vehicle.
“Mapping a cell phone’s location over the course of 127 days provides an all-encompassing record of the holder’s whereabouts. As with GPS information, the timestamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.’”
Every person has a reasonable expectation of privacy in their physical location, as well as their “familial, political, professional, religious, and sexual associations,” and it doesn’t take too much imagination to see how an over-zealous government official could abuse the overload of information that is available from cell tower data alone.
But, don’t you voluntarily relinquish the data by using the cell phone?
You do, but is that really a meaningful choice?
As the Court points out in the first line of the first section of the opinion, “There are 396 million cell phone service accounts in the United States—for a Nation of 326 million people.” You either submit to data collection on every aspect of your life by the cell tower or you don’t have a phone – which is not a reasonable option for most people today.
Fourth Amendment Exceptions Apply to Cell Tower Data
The Court also points out that the many exceptions to the Fourth Amendment’s search warrant requirement will also apply to cell tower data. For example, police do not need to obtain a warrant when there are “exigent circumstances” such as the need to:
- “Pursue a fleeing suspect;”
- “Protect someone who is threatened with imminent harm;” or
- “Prevent the imminent destruction of evidence.”
The Court also points out that their decision is a narrow one – in this case, the government received cell tower data that covered a period of at least 127 days and 12,892 location points.
The Court did not decide whether an order obtaining records for a shorter time period would violate the Fourth Amendment – which makes this decision meaningless in most cases and provides little guidance for police and prosecutors who would ordinarily seek records that are targeted to a particular date and time when an incident occurred…
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