Supreme Court Says Warrants Are Needed For Cell Site Location Info

from the 4th-Amendment-Bonus-Content! dept

The Supreme Court -- in a narrow decision (both in scope and votes) -- has restored a little more of the Fourth Amendment. The long-awaited decision [PDF] in the Carpenter case has been released and the Supreme Court finds, in a 5-4 decision, that cell site location info (CSLI) is technically a third-party record but worthy of the Fourth Amendment's protection.

The defendant challenged the government's warrantless acquisition of 127 days of CSLI, arguing that the constant location records generated (without proactive assistance from phone users) by cell providers raised enough of a privacy issue the Fourth Amendment was implicated. Somewhat surprisingly -- given the long history of expansive readings of the Third Party Doctrine -- the Supreme Court agrees.

[W]hile 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 its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements.

We decline to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cell phone 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. The location information obtained from Carpenter’s wireless carriers was the product of a search.

The court notes simply venturing out into the public does not erase all privacy expectations. The pervasive tracking engaged in by phone companies for business reasons should not undo a person's reasonable expectation of privacy. While the government tried to compare it to tracking vehicles with GPS devices, the court notes that cars cannot go everywhere people go. Long-term tracking -- made possible by provider recordkeeping -- provides the government with detailed depictions of cellphone users' lives. And all of this was -- up until this decision -- only a subpoena away.

[H]istorical cell-site records present even greater privacy concerns than the GPS monitoring of a vehicle we considered in Jones. Unlike the bugged container in Knotts or the car in Jones, a cell phone—almost a “feature of human anatomy,” Riley, 573 U. S., at ___ (slip op., at 9)—tracks nearly exactly the movements of its owner. While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time. A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.


Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.

The ubiquity of cellphones has changed the Third Party Doctrine dynamic. The court isn't willing to give the government warrant-free access to the personal lives of millions of Americans.

Critically, because location information is continually logged for all of the 400 million devices in the United States—not just those belonging to persons who might happen to come under investigation— this newfound tracking capacity runs against everyone. Unlike with the GPS device in Jones, police need not even know in advance whether they want to follow a particular individual, or when.

That's the substance of the decision, but the whole thing is worth reading in full. Even the dissents are worth a read, if only to see how many justices would prefer the government treat long-term tracking as no different than bank records people voluntarily create with every transaction. The court will extend the Third Party Doctrine to cover historical CSLI. However, it does not extend that coverage to cover tower dumps, real-time CSLI (ping orders/Stingray use) or any other records otherwise covered by the Third Party doctrine. But this is still a significant Fourth Amendment win -- and law enforcement agencies using CSLI subpoenas to cover Stingray use will now need to craft warrant requests specifying what they're doing, which will make just a little bit tougher to engage in parallel construction.

More than half the page total is given over to the dissent. Justices Kennedy and Alito have written separate dissents that say pretty much the same thing:

1. The records were obtained from a third party so no warrant should ever be needed.

2. This will law enforcement's work more difficult.

Even if the latter is true, Constitutional protections protect the citizens from their government. If they're an obstacle, they're meant to be. The court isn't there to ensure easy government access. It's there to act as a check against any government overreach it observes.

Justice Thomas' dissent is perhaps the most infuriating read. Much like his dissent in other law enforcement-related cases, Thomas sides with the government while claiming he's siding with the Constitution. His main argument here is that the Fourth Amendment says nothing about privacy or reasonable expectations, therefore the court's decision is wrong. It guards people and papers, not stuff obtained from third parties, no matter how invasive these records can potentially be.

Justice Gorsuch's dissent, however, is an entertaining read. It's really not even a dissent. He agrees with the majority's decision but doesn't think it goes far enough. If Gorsuch had his way, he would also return to a more originalist view of the Fourth Amendment -- the property rights theory he pitched during oral arguments. But unlike Thomas, his would eliminate the court-erected Third Party Doctrine and grant privacy to records created by customers/users and held by third parties. These decisions (Smith, Miller, Katz) would instead be replaced with a property-based treatment of records, giving customers/users more ownership rights to third-party records they create, making them part of the "houses and papers" Fourth Amendment interpretation even if the the "papers" are held by others.

I cannot fault the Sixth Circuit for holding that Smith and Miller extinguish any Katz-based Fourth Amendment interest in third party cell-site data. That is the plain effect of their categorical holdings. Nor can I fault the Court today for its implicit but unmistakable conclusion that the rationale of Smith and Miller is wrong; indeed, I agree with that. The Sixth Circuit was powerless to say so, but this Court can and should. At the same time, I do not agree with the Court’s decision today to keep Smith and Miller on life support and supplement them with a new and multilayered inquiry that seems to be only Katz-squared. Returning there, I worry, promises more trouble than help. Instead, I would look to a more traditional Fourth Amendment approach. Even if Katz may still supply one way to prove a Fourth Amendment interest, it has never been the only way. Neglecting more traditional approaches may mean failing to vindicate the full protections of the Fourth Amendment.

This is a big ruling and it will definitely affect how law enforcement approaches investigations. It will not be well-received by those used to tracking people via subpoena (rather than tail cars and surveillance teams). But it likely won't do much for Carpenter, who will almost certainly find good faith awarded to law enforcement's acquisition of his CSLI records. It will help going forward, but Carpenter will not be a beneficiary.

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Filed Under: 3rd party doctrine, 4th amendment, carpenter, csli, location info, privacy, scotus, supreme court

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  1. icon
    Toom1275 (profile), 23 Jun 2018 @ 6:32am

    Re: Gorsuch

    Gonna paste an insigntful-looking comment on that subject I found on another article about this:

    shelbystripes wrote:

    Gorsuch scares the crap out of me, and I say that as someone who has been condemning the third party doctrine in Ars' comments sections for years. You'd think I'd be rejoicing at this kind of "dissent", right? But no. No I'm not.

    I'm not because Gorsuch is insane when it comes to property rights.

    Earlier this year, in an 8-1 decision, the Supreme Court upheld a Minnesota life insurance regulation. The regulation was simple and common among US states; if you have a life insurance policy, and you get divorced, your ex-spouse is automatically removed as beneficiary. The law doesn't say you can't name an ex-spouse as beneficiary, you can, it just assumes by default that a divorce means you don't. If you do, you just have to go back and re-add them after the date of the divorce.

    As I said, this was an 8-1 decision. Even Thomas joined the majority. Gorsuch, though, went off the rails in a lonely dissent. He argued that the life insurance policy was a contract, and because the Minnesota law applied to existing life insurance policies (policies underwritten before the law was enacted), it was unconstitutional.

    The text of Gorsuch's dissent itself is painful to read, as he mixes up core concepts of constitutional law. At one point he analogizes to criminal law, asking if "a legislature could hold you retroactively liable for violating a new law against jaywalking that didn’t exist when you crossed the street", then saying "[n]o one would take that idea seriously when it comes to crime". Well, yes, but only because that "idea" would constitute an ex post facto law that violated the constitution's Ex Post Facto Clause, and it has been clear since 1798 that the Ex Post Facto clause doesn't apply to civil laws. Directly contradicting 200-year-old SCOTUS precedent without even acknowledging it is a horrifying breach of judicial process. Instead he slyly re-imagines the Contracts Clause into the Ex Post Facto Clause's civil equivalent.

    (Oh, and by the way, he also seems to completely ignore basic concepts of trusts and estates law in the process. He writes that the beneficiary designation is the "whole point" of a life insurance contract, and thus Minnesota law was depriving an ex-wife of insurance policy proceeds. But the primary purpose of a life insurance policy is to provide financial compensation to one's intended heirs upon death, not to provide that compensation to a particular person. An "heir" has literally no rights in the policy before the policyholder's death, which is why in many cases, the policyholder can change the beneficiary at will.)

    Gorsuch's extreme reading of the Contracts Clause would, apparently deliberately, eviscerate the government's regulatory power. After all, his reading is that no federal or state law can enact ever regulation that would impact existing contracts. Want to protect the environment? Sorry, we have a 99-year lease with CoalCo to provide coal power to us! Expand anti-discrimination laws? Sorry, we have binding contracts with all of our employees!

    Rooting privacy laws in Gorsuch's re-imagining of contract rights will protect people's privacy from the government but destroy any chance of having privacy from large businesses or your landlord or employer. All they really need to do is put their right to invade your privacy into a contract. Gorsuch would probably void all net neutrality laws as intruding on the "rights" of individuals to individually accept contracts with ISPs containing data caps, fast lanes, etc.

    In other words, Gorsuch wants to revive the corpse of the Lochner era, which resulted in the Crash of 1929 and the Great Depression.

    link to original comment, which has linls not preserved by copy-paste: o-get-cellphone-location-data/?comments=1&post=35554207#comment-35554207

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