Supreme Court Rules Warrant Needed for Cell Site Location Data

Huge, ground-breaking decision from the Supreme Court today! In a 7 to 2 ruling, the Court said a search warrant is needed for cops to obtain cell site location information from phone companies.

The opinion is here.

The case before us involves the Government’s acquisition of wireless carrier cell-site records revealing the location of Carpenter’s cell phone whenever it made orreceived calls. This sort of digital data—personal location information maintained by a third party—does not fit neatly under existing precedents.


Chief Justice Roberts writes:

Much like GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic, and effortlessly compiled.

...At the same time, the fact that the individual continuously reveals his location to his wireless carrier implicates the third-party principle of Smith and Miller. But while the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records.After all, when Smith was decided in 1979, few could have imagined a society in which a phone goes wherever itsowner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record ofthe person’s movements.

We decline to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cellphone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. (my emphasis)

I think the impact of this decision could be enormous.

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    An example of the "living Constitution" (5.00 / 3) (#2)
    by Peter G on Fri Jun 22, 2018 at 08:46:27 PM EST
    at its best. The Fourth Amendment protects the "secur[ity]" of "the people" in their "persons, houses, papers and effects." Into which of those protected realms does information about our past locations fall? In other words, this decision protects the principles that the Fourth Amendment was designed to secure but departs from both its words and its "original intent." Chief Justice Roberts is no Scalia. Thank goodness.

    the Warshington Post said it was 5-4 (5.00 / 3) (#3)
    by leap on Fri Jun 22, 2018 at 09:10:09 PM EST
    Thomas, Gorsuch, Alito, and Kennedy being the four, of course. I didn't think there would be seven on this Court who would agree to this.

    Chief Justice Roberts, (5.00 / 2) (#4)
    by KeysDan on Sat Jun 23, 2018 at 01:35:57 PM EST
    who is reported to draft opinions long-hand, without computer-assistance, and who, in arguments in Ontario v Quon, 2010, a case regarding use of a government-issued pager to a SWAT team member who used it for both private/government use (including sexy messages to his wife and mistress), asked what the difference was between a pager and email, has issued (along with Breyer, Ginsburg, Kagan and Sotomayor) a landmark ruling that expands and updates Fourth Amendment protection for cell-site location information (CSLI).

    Carpenter who, ironically, was part of a group that robbed electronic retailers in MI and OH (e.g, Radio Shack) resulting in his conviction and a prison term of 116 years, on the basis, partly, owing to his CSLI.

     Carpenter argued that the government violated his fourth amendment rights to be free from unreasonable search and seizure.  However, under the SC's third party doctrine, Carpenter did not seem to have a case (individual loses his right to privacy in information voluntarily turned over to a third party). Carpenter still argued that the third party doctrine does not apply to CSLI because it creates a comprehensive view of life.

    The Court agreed in that CSLI implicates "privacy far beyond" what the Court considered earlier.

    The Stored Communications Act does require a Court order for CSLI, but the bar is low--reasonable grounds for believing the data is relevant and material to an investigation.

     The Robert's decision requires (generally, some emergency exceptions) that law enforcement officials secure a warrant.  It seems to me that deciding that the cell-site records were willingly shared would open the door for the Court to find passively collected data from app usage to data of third party servers...all accessible to LE.

    The dissents seem confusing. All four, Alito, Gorsuch, Kennedy, and Thomas wrote separate dissents.  In common, they seemed to raise the "what ifs" and attack the logic if not, completely, the idea of surveillance that can glean, as the Court held "familial, political, professional, religious, and sexual associations (i.e. private life)."

     Kennedy, expressed concern that the ruling was "new and uncharted waters" that would inhibit law enforcement. True enough on uncharted waters, but law enforcement will adjust to the warrants, would be my bet.  And, Kennedy, fears that the ruling will keep defendants and judges guessing for years, probably true, given the technology field. Again, people adjust.

    Alito thinks it is a job for Congress, rather than messing around with all the settled fourth amendment law (originalist).

    Gorsuch is really hard to decipher. A bit rambling, and nit-picking. But, he discusses the property-based understanding of the fourth amendment and introduces the civil law idea of bailment, such as not giving ownership up when giving your car to valet attendant, or give your fur coat to the hat check.

     For awhile, it seemed that Gorsuch could have joined the majority.  Although, Roberts did note that Gorsuch does not understand why "someone's location when using a phone is sensitive", and in a footnote, states that "Gorsuch faults us (the majority) for not promulgating a complete code addressing the manifold situations that may be presented by this new technology, under a constitutional provision turning on what is "reasonable", no less. A little snarky, but summarizes his dissent.

    thanks for this comment, KeysDan n/t (5.00 / 2) (#5)
    by leap on Sat Jun 23, 2018 at 02:46:36 PM EST

    Awesome! (none / 0) (#1)
    by linea on Fri Jun 22, 2018 at 08:08:55 PM EST
    This is a great thing for civil liberties and privacy rights.