Can Prosecutors appropriate your phone’s location pings without probable cause?

This post is written by Executive Editor Patrick Quinn. Opinions and views expressed herein are those of the writer alone.

1

 

We store untold amounts of personal information on cell phones. My phone, cracked screen and all, carries personal pictures, audio recordings, browsing history, and purchase records spanning years. In 2014, the Supreme Court ruled in Riley v. California that the private information contained within my phone receives Fourth Amendment protection.[1] As such, law enforcement must have a warrant before searching through its contents.[2]

This fall term, the Supreme Court will hear a case questioning whether Riley protection extends to the personal location information and call history recorded by cell companies. [3] No one can ignore device manufacturers, third party applications, and cellular service providers use our location data through the normal course of business. The time and location data allows us to place a phone call, send a text, or find nearby restaurants on Yelp.

As of 2009, law enforcement can access this information without a warrant.  Specifically, the Secured Communications Act (SCA) allows courts to order cellular companies to disclose customers’ call and location data upon request. For the court order, Prosecutors need only show reasonable grounds, not probable cause, to believe the information is relevant to an ongoing criminal investigation. [4]

Timothy Carpenter, an accused armed robber, questions the Constitutional validity of the SCA.[5] As part of their case against Carpenter, prosecutors obtained, without a warrant or showing of probable cause, several months-worth of his cell phone history.  The information included the number, time, and place where Carpenter sent or received calls.[6]  Prosecutors alleged this location information placed Carpenter in the vicinity of the alleged armed robberies.[7] Motions to suppress this evidence were denied and a jury ultimately convicted Carpenter of six armed robberies totaling a 116 year prison sentence. The Sixth Circuit denied Carpenter’s appeal holding Carpenter had no reasonable expectation of privacy on location data his cell carrier recorded during the course of business.[8] Now the case has reached the Supreme Court.

When I consider what case law the Justices will use in their decision, Katz and Jones come to mind. Katz was using a phone booth to place illegal bets. The government eavesdropped on his calls without a warrant but their hard work was all for naught. The Court ruled a person, even in public, has a reasonable expectation of privacy in his person. [9]  Making a private call in a public phone booth was still private.  In Jones, the Court examined the extended monitoring of a person’s location.[10] Specifically, tracking someone’s movements and location with a hidden GPS monitor for an attenuated period of time requires a warrant.[11]

 

Proponents of the SCA argue any reasonable expectation of privacy dissolves when users voluntarily disclose their call information to their cell carrier.[12] Personal information on a cell phone is private but the disclosure of the information necessary to provide service is not.[13] Similarly, the Court has already ruled bank records are not subject to Fourth Amendment warrant requirements because account holders voluntarily disclose their transactions to their banks.[14] Perhaps the Court will liken cell phone records to bank statements. Who you call and where you call is not private but the pictures you send them or the conversation you have is.

 

Should the Supreme Court decide to phone-a-friend, I would vote for Fourth Amendment protection. Mr. Carpenter’s circumstances mirror the warrantless GPS monitoring more than anything else. Walking in public, I realize I show passersby my location and actions in the singular instances they see. I know the cell company records time and place information as part of our service agreement. They need it to connect each call.  Yet assembling those instances to create a comprehensive step-by-step account of my movements and associations, then retrofitting that information to an alleged criminal schema seems befitting the very protections the Fourth Amendment seeks to guard.

 

I’m sure I would hear Justice Sotomayor agreeing with me on my mythological SCOTUS conference call. In her Jones concurrence, she wrote the Fourth Amendment covers comprehensive location tracking because it “generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”[15] Even though we voluntarily disclose individual bits of information to cell companies in return for service, we cannot concede the government access to these records without a warrant or probable cause.

 

**DISCLOSURE: The author of this article did “pretty average” in Criminal Procedure so any information absorbed by the reader is at their own risk**

[1] See Riley v. California, 134 S. Ct. 2473, 2485 (2014).

[2] Id.

[3] Amy Howe, Justices to tackle cellphone data case next term, SCOTUSblog (June 5th, 2017, 12:52 PM), http://www.scotusblog.com/2017/06/justices-tackle-cellphone-data-case-next-term/

[4] Id.

[5] Petition for Writ of Certorari at 3, Carpenter v. United States, 819 F.3d 880 (6th Cir. 2016) (No. 16-402).

[6] Id.

[7] Id. at 8.

[8] Id. at 9.

[9] See generally Katz v. United States, 389 U.S. 347 (1967).

[10] See United States v. Jones, 132 S. Ct. 945 (2012).

[11] Id.

[12] Brief of Respondent at 8, Carpenter v. United States, 819 F.3d 880 (6th Cir. 2016) (No. 16-402).

[13] Id. at 7.

[14] United States v. Miller, 425 U.S. 435, 440 (1976).

[15] Jones, 132 S. Ct. at 955.

Author: nkylrev

The Northern Kentucky Law Review, founded in 1973, is an independent journal, edited and published entirely by the students of NKU Chase College of Law.

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