Justice and Due Process

SCOTUS Hearing Cell Phone Surveillance Case


The U.S. Supreme Court is hearing a case today involving a man convicted of robbery based on the government’s ability to obtain—without a warrant—the man’s historical cell phone data, tying his past locations to the proximity of the bank robberies that had occurred. The implications of this case are substantial.

Carpenter v. United States sets the stage for one of the most significant surveillance cases in decades. The FBI suspected Timothy Carpenter of being the getaway driver for a group robbing Radio Shack locations in Detroit, Michigan in 2011. The feds wanted Carpenter’s cell phone data, and got it—without obtaining a warrant.

Their argument, with which courts to this point have agreed, is that the Fourth Amendment’s requirement to obtain a warrant does not apply to cell phone tracking because the government did not obtain the content of Carpenter’s phone calls. If this sounds familiar, it’s because the NSA has employed similar legal arguments to justify its sweeping surveillance activities.

Several years ago we proposed legislation to address this issue, which successfully passed into law. HB128 prohibits state and local government agencies from obtaining “the location information, stored data, or transmitted data of an electronic device without a search warrant issued by a court upon probable cause.”

But the Carpenter case takes it further, asserting that because the information was in the hands of a third party (the cell phone provider), the individual surrendered their privacy interest and no longer had an expectation of privacy. The data was in another’s hands already, so the feds could simply request it.

In a day when information is either forcefully surrendered to third parties, or willingly done so out of social, professional, or personal necessity, this question is a highly significant one: does transacting with a company, and giving them information that is intended only for them, imply that you do not want that data kept safe and secret from others?

We believe the answer to this question is quite obvious, but the federal government has historically objected to the answer that would make it more difficult for their prying hands and eyes to access whatever information they desire, without judicial scrutiny.

We will be monitoring this case closely and potentially responding with additional proposed legislation in the state.

  • Derek Garfield

    I would think that unless user agreements expressly state that they WILL divulge such information upon simple requests from law enforcement that the expectation of privacy should remain. However, this situation seems more similar to a private conversation. If I tell my friend that I’m going to such and such bank later today and the police ask him, under the suspicion that I had in fact robbed that bank, if he knew of my intentions that day or my whereabouts, and he chooses to disclose that information, I can’t claim that I had some legally recognized expectation of privacy in our conversation and that the police were infringing upon my 4th amendment rights by simply inquiring a known associate as to my whereabouts. I’m afraid that unless phone companies expressly state that they will maintain privacy in user agreements then they have no legal obligation to withhold that information until presented with a warrant. Mr. Carpenter was suspected of having been involved in a robbery and investigators questioned an entity which was able and willing to provide them information about the accused’s whereabouts. Absent a commitment to ensure their customer’s privacy, the cell company was under no legal obligation to withhold the information. The problem with NSA collection is that of scope. They are executing general searches, often without suspicion of any particular crime by any particular person. This is clearly unreasonable and contrary to a sound understanding of the 4th.

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