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What the U.S. Supreme Court's Cell Tower Ruling Means for the Intersection of Privacy and Modern Technology

    Client Alerts
  • July 06, 2018

In a 5-4 decision on June 22, the Supreme Court in Carpenter v. United States ruled that the police need a search warrant to access cell tower records that can map a criminal suspect’s location and movements. Chief Justice John Roberts – who authored the majority’s opinion and was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan – expressly limited the majority’s holding to cell site location information (CSLI) rather than other business records held by third parties. The majority opinion further included an emergency exception to the new warrant requirement.

Nevertheless, despite these apparent limitations, the decision is the latest in a growing trend that acknowledges that the scope of constitutional privacy protections must expand to accommodate the realities of modern technology. Therefore, even though the court’s ruling was narrowly focused on the cell tower information at issue, the case represents a departure from historic Fourth Amendment precedent and includes reasoning and analysis that can be applied to the protection of other forms of records and data in the future.

Timothy Carpenter, the defendant in the case, was serving a sentence for his role as the ringleader of a series of armed robberies in 2010 and 2011. In the course of investigating these robberies, the authorities requested 127 days of data from Mr. Carpenter’s cell phone carrier without a warrant. Mr. Carpenter’s cell phone provider complied with the request. Prevailing Fourth Amendment law historically provided that a warrant was not required pursuant to the third-party doctrine. However, in Mr. Carpenter’s case, his 12,898 points of CSLI placed him at or close to the alleged robbery sites. Mr. Carpenter appealed his conviction.

The majority of the Supreme Court agreed with Mr. Carpenter, finding that the CSLI at issue “does not fit neatly under existing precedents” and therefore is entitled to Fourth Amendment protection. The court began by noting that CSLI data is uniquely personal and, like GPS 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” that “hold for many Americans the privacies of life.” The court further noted “… the seismic shifts in digital technology that made possible the tracking of not only Carpenter’s location but also everyone else’s, not just for a short period but for years and years.” The court’s wariness of the government’s arbitrary use of such personal data further underlined the court’s decision.

While Carpenter represents a departure from past Fourth Amendment precedent, it is important to remember that it is a part of a larger, growing trend to redefine the landscape of privacy in the digital age. For example, in 2014 the Supreme Court concluded that a warrant was needed to search a person’s cell phone – “Modern cellphones are not just another technological convenience … They could just as easily be called cameras, video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps or newspapers.” Similarly, in 2012, the court held that the government’s attachment of a GPS to a suspect’s vehicle that was used to monitor the vehicle’s movements constitutes a search under the Fourth Amendment.

These decisions are important in that they acknowledge that technology necessarily affects privacy expectations. But more than this, however, the analysis contained in Carpenter and its progeny can arguably be applied in other contexts, like emails, smart appliances, and other third-party-interfacing technology.

Only time will tell whether and to what extent the protections afforded to one’s home and personal effects under the Fourth Amendment will be extended to one’s digital self. Nevertheless, cell phone, email services, and any other third-party providers should closely scrutinize requests from the government before producing records if a warrant is not used by the requesting entity.

For additional information, please contact us or your regular Parker Poe contact.