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Fourth Amendment Victory: U.S. Supreme Court Protects Americans’ Cell Phone Records Against Warrantless Government, Police Surveillance

The Rutherford Institute

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une 22, 2018


FURTHER READING: The Supreme Court’s opinion and The Rutherford Institute’s amicus brief in Carpenter v. United States.

WASHINGTON, DC — In a 5-4 ruling in Carpenter v. United States that sends a strong message about privacy rights in an age of government surveillance, the U.S. Supreme Court has ruled that police must generally obtain a warrant before obtaining cell phone data to track a person’s movements. Denouncing the now widespread tactic employed by police departments, big and small, of spying on Americans via their cell phones with little to no oversight, The Rutherford Institute had asked the Supreme Court to require police agencies to secure a warrant before executing a cell phone search and using that data to track a person’s movements over time. In its amicus brief, The Rutherford Institute called on the Court to reject the government’s claim that cell phone users have no reasonable expectation of privacy in cell phone location information, an idea that is based on the antiquated idea that individuals “voluntarily” provide this information to cellular service providers.

Affiliate attorneys Alicia Hickok and Mark Titicchi of Drinker, Biddle & Reath, LLP, assisted The Rutherford Institute in advancing the arguments in the Carpenter brief.

“As the Supreme Court has recognized with this ruling, new technologies which enable the radical expansion of police surveillance operations require correspondingly robust legal frameworks in order to ensure the viability of the Fourth Amendment,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People.  “This new era of surveillance technology, one that was completely unimaginable to the men who drafted the Constitution and the Bill of Rights, requires an updated legal code to enshrine the right to privacy. Today’s ruling signifies a tremendous victory for the right of the people to be safe and secure from unreasonable and warrantless searches and seizures by government agents not only in their persons, houses, papers, and effects, but also as the right to privacy pertains to the ever-evolving technological realm.”

In 2011, police arrested four people suspected of carrying out a series of armed robberies in the Detroit area. One of the suspects turned informant and provided police with the phone numbers of as many as 15 other men he claimed had assisted with the robberies, acting as getaway drivers and lookouts. As part of its investigation, the FBI—without securing a warrant or showing probable cause—sought court orders requiring two cellular telephone service providers to turn over 127 days’ worth of cell site location information (CSLI) for 16 different phone numbers, including Timothy Carpenter’s cell phone. The orders were sought under a federal law, the Stored Communications Act, which allows the government to obtain records about individuals’ cell phone merely on the basis that the records are “relevant to an investigation.” Based on the cell phone location data, the government tracked Carpenter’s location for over four months, and then used that information to connect him to a series of robberies and charge him with aiding and abetting robbery. Although Carpenter’s attorney argued that the government’s warrantless acquisition of over four months’ of cell phone records to track Carpenter violates the Fourth Amendment, the trial and appellate courts disagreed, ruling that people do not have a privacy interest in cell phone location information. In weighing in on the case before the U.S. Supreme Court, Rutherford Institute attorneys stressed the need for stronger legal privacy protections for emerging technologies.