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Sep292017

DOJ Asks Supreme Court to Allow Warrantless Access to Cell-Site Location Information

What Happened?
In a brief filed September 27, the Department of Justice urged the Supreme Court to allow law enforcement to access historical cellphone location information without a warrant. 

The Rundown
In June, the Supreme Court granted certiorari in Carpenter v. U.S., 16-402, which challenges the Sixth Circuit’s classification of cell-site location information as business records not subject to the Fourth Amendment’s warrant requirement.  Carpenter, represented by the ACLU, argued in his opening brief that courts should require law enforcement to obtain a warrant in order to access cell-site location information because this information provides a detailed itinerary of where a person has been and the people he has been with.  According to Carpenter, “[t]racing a person’s geographical movements reveals highly sensitive personal information, and prior to the digital age, people reasonably expected that police in most investigations would not have followed a person and recorded her every movement for days or weeks on end.”  Carpenter argues that this same reasonable expectation of privacy analysis must also apply to cell-site location information.  

The government, on the other hand, contends that cellphone users “voluntarily reveal to their providers information about their proximity to cell towers so the providers can connect their calls” and therefore “[u]sers cannot reasonably expect that the providers will not reveal that business information to the government.”  In the absence of any legitimate expectation of privacy in this information, DOJ argued, the government can access this information without implicating the Fourth Amendment.  DOJ relied on Supreme Court cases from the 1970s holding that Fourth Amendment protections do not apply to third party records containing non-content information about an individual.  The government contrasted cell-site information with email (which the Fourth Amendment protects) explaining that “[e]mail is routed through a provider, and its contents, like those of a sealed letter in the mail, may remain private,” but “because cell tower information is sent to the provider and used in its own business; it falls within the traditional third party doctrine.” 

Multiple companies in the technology industry have also weighed in.  Apple, Facebook, Google, Twitter, Microsoft, Airbnb, Cisco Systems, and Verizon filed amicus briefs in August arguing that law enforcement needs a warrant to obtain historical cellphone location records.  These businesses claim that the third party doctrine’s application to today’s increasingly sophisticated tracking technology could “eliminate citizens’ privacy in the modern age.”  They argue that “[c]onsumers should not be forced to relinquish Fourth Amendment protections against government intrusion simply by choosing to use [modern cellphone] technologies,” and that “the court should forgo reliance on outmoded rules that make little sense when applied in the digital context.”

What Happens Next
This case will be heard in the Supreme Court’s upcoming term, which starts October 2.  A specific date for oral argument has not been set. 

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