Carpenter, a former convict, raises a specific question about whether Americans have an expectation of data privacy in historical “cell-site location information” (“CSLI”). The Petitioner, Timothy Carpenter, was one of two defendants convicted for his role in a series of armed robberies in Michigan and Ohio, based in part on 127 days of CSLI data that placed him between ½ and 2 miles from the robberies around the time they were committed.
On appeal, the Sixth Circuit affirmed his conviction, holding that Carpenter had no expectation of data privacy in his CSLI data–and so the government did not need a warrant before obtaining it and admitting it at trial. Whether the Supreme Court endorses or rejects this logic, the answer has enormous implications for data privacy laws—and the Fourth Amendment—more generally. Indeed, it’s no exaggeration to suggest that Carpenter will be the most important Fourth Amendment case that the Supreme Court has heard in a generation. The legal fight has raised questions about how much companies protect the data privacy rights of their customers. The big four wireless carriers, Verizon Communications Inc(VZ.N), AT&T Inc(T.N), T-Mobile US Inc(TMUS.O) and Sprint Corp(S.N), receive tens of thousands of requests a year from law enforcement for what is known as “cell site location information,” or CSLI. The requests are routinely granted.
The Supreme Court has twice in recent years ruled on major cases concerning how criminal law applies to new technology, on each occasion ruling against law enforcement. In 2012, the court held that a warrant is required to place a GPS tracking device on a vehicle. Two years later, the court said police need a warrant to search a cellphone that is seized during an arrest.
The Supreme Court Phone Location Case to decide the future of data privacy.
— The Telegraff News (@omilosimon) July 17, 2017
So not only are we sharing far more data with third parties than we did in the 1970s (when the third-party doctrine was articulated), but the government is in a far better position today to use that data to obtain information about us that we might not want it to have.
CSLI is a textbook example of this phenomenon. When the Supreme Court first set out the parameters of the third-party doctrine, phone records could often place an individual in their home or office when they were making and receiving telephone calls, but not otherwise or elsewhere. CSLI, in contrast, is the phone company’s data of which cellular towers its customers are “pinging” when they’re using their cell phones for almost any purpose (and, much of the time, even when they’re not), data that can, depending upon the circumstances, be used quite accurately to pinpoint the specific locations of specific individuals at specific times—and not just in their home or office. (When customers have activated the GPS on their phones, the tracking of their location is even more accurate.) The Trump administration said in court papers the government has a “compelling interest” for acquiring the records without a warrant because the information is particularly useful at the early stage of a criminal investigation.
“Society has a strong interest in both promptly apprehending criminals and exonerating innocent suspects as early as possible during an investigation,” the administration said in a brief. David LaBahn, president of the Association of Prosecuting Attorneys, said warrants can be obtained quickly from judges but police may have problems getting the evidence needed to show probable cause.