The Supreme Court starts its latest term at the beginning of October. According to the court's website, “[t]he October 2017 Term marks the 100th anniversary of the Court opening on the First Monday in October.” The Court is hearing a number of important cases this term including the highly controversial travel ban case. Another matter that the country's highest court is hearing concerns cell phone data. According to SCOTUSblog, the issue in the case of Carpenter v. United States is “[w]hether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.”
In the case, the defendant and petitioner is Timothy Carpenter, who is “accused of being the mastermind behind a series of armed robberies in Ohio and Michigan.” According to Scotusblog, “[l]aw-enforcement officials asked cellphone providers for the phone records for 16 phone numbers, including Carpenter's that had been given to them by one of Carpenter's partners in crime.” Officers did not obtain a warrant before obtaining the records as under the law they relied on, a 1986 law called the Stored Communications Act, “the government does not need to show that there is probable cause to believe that a crime has been committed.” The Stored Communications Act “allows phone companies to disclose records when the government provides them with ‘specific and articulable facts showing that there are reasonable grounds to believe' that records at issue ‘are relevant and material to an ongoing criminal investigation.'”
The data that law enforcement received helped officers “determine that, over a five-month span in 2010 and 2011, Carpenter's cell phone connected with cell towers in the vicinity of the robberies.” This information was used to help convict Carpenter who received a prison sentence of nearly 116 years. Carpenter had moved to suppress the cell tower records “because the government had not obtained a warrant for them.” He was denied by the district court and the appellate court agreed that finding that a third party doctrine applied. This doctrine concerns the “idea that the Fourth Amendment does not protect records or information that someone voluntarily shares with someone or something else.” The appellate court “ruled that the government was not required to obtain a warrant because Carpenter could not have expected that cellphone records maintained by his service provider would be kept private.”
SCOTUSblog states that Carpenter is arguing that his case is different than prior third-party cases and that the “disclosure of his cellphone records to the federal government was a ‘search' for which the government needed a warrant.” In addition, he contends that the fact that a third party holds his data does not negate his expectation of privacy and he asks the justices to consider his “privacy interest in the information revealed by the records.” He contends that this weighs in his favor as “[m]ost people have their phones with them all the time . . . which means that cellphone records can show where someone was and what he was doing at any given time, even in places –most notably, at home –where he would expect privacy."
The federal government argues that Carpenter doesn't own the cell phone records, he doesn't have a “reasonable expectation of privacy in the cell phone records, which only tell the government where his cell phone connected with the towers,” that Carpenter's real issue is the inference that he is near the towers and that “an inference is not a search.” In addition, according to SCOTUSblog, the government argues that cellphone users are aware of the information that they are giving out when using their phones, like location data, and that prior case law does not support Carpenter's position.
The court has not yet set a date for oral argument in this case. When the argument is held, the audio will be available on the court's website.