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Posted on Monday, June 12, 2017

Supreme Court to Decide Cell Phone Data Privacy Case

The U.S. Supreme Court has agreed to hear a major data privacy case that will determine the extent to which law enforcement can access cell phone location data maintained by wireless carriers, and whether a warrant should be required to access such information.

This case comes up on the appeal of Timothy Carpenter, who was arrested in 2011 in association with a string of robberies at Radio Shack and T-Mobile locations in Michigan. Carpenter was convicted on six counts of robbery after police used cell phone location data obtained from Carpenter’s wireless carrier, without a search warrant, to determine that he was near the scene of each crime. The question before the Court is whether the failure to obtain a search warrant for wireless location data violates a defendant’s right to be free from unreasonable searches and seizures under the Fourth Amendment.

Although the Supreme Court has already held that a warrant is required before placing a GPS tracking device on a vehicle or searching the contents of a cell phone seized during an arrest, no such ruling has been made regarding the location data at issue in Carpenter’s case, which was ascertained by determining which local cell towers his phone connected to while making calls around the time of each robbery.

Wireless carrier data, including “cell site location information,” as it is referred to in the industry, currently falls into the category of “customer records,” for which no search warrant is required under the Stored Communications Act of 1986. However, civil liberties advocates argue that 1986 lawmakers could not have predicted the extent to which records and data for individual communications devices would be able to pinpoint a customer’s geographic location.

This case, which will likely be heard in the fall, squarely addresses some realities of customer data in the digital age. Because cell phone location data can reveal so many private details of a customer’s life, it may be time for the Supreme Court to recognize the warrantless search of digital records as a Fourth Amendment violation, even though customers, by simply using their cell phones, voluntarily share those records with their wireless carriers.

Presently, the four largest wireless carriers—Verizon, AT&T, T-Mobile, and Sprint—receive tens of thousands of warrantless requests for cell site location information each year, the same type of location data that resulted in Timothy Carpenter’s six robbery convictions. Keep a close eye on this one as we wait to see whether Fourth Amendment protections are expanded to cover the digital records that have become so commonplace in the 21st century.

Frank Gulino is an attorney with Berenzweig Leonard. He can be reached at FGulino@BerenzweigLaw.com.