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US Supreme Court to decide case about location information on cell phones

Posted by Paul Rubell on December 05, 2017

An armed robbery is giving the Supreme Court the opportunity to blaze new legal ground in the world of electronic evidence. Timothy Carpenter was convicted for violent crimes committed in Ohio and Michigan. He was sentenced to 116 years in prison. Needless to say, he appealed the conviction. Although law enforcement authorities did not have a search warrant, they collected 127 days of cell site location information revealing his locations, movements, and associations. This geolocation metadata was stored on Carpenter's cell phone and was used as evidence to convict Mr. Carpenter.

Who owns Carpenter's cell phone metadata? Is a search warrant and a showing of probable cause to a judge required for the police to hack into a suspect's cellular phone? These are the key questions facing the Supreme Court in this novel case.

The 4th Amendment to the United States Constitution protects individuals by requiring the government to obtain search warrants before conducting searches:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The government introduced Carpenter's phone records at trial to show that at the time of the robberies, he was in the same geographic areas where the crimes took place. Law enforcement did not do old-fashioned police work by surveilling Mr. Carpenter 24 hours a day for 127 days, following his every step. Instead, the police asked the courts to compel Carpenter to turn over his phone and the data stored inside the phone. Carpenter's counsel objected to the turnover of the cell phone for privacy reasons:

"the tracking power of cell phones is a categorically new power that is made possible by these perfect tracking devices that 95 percent of Americans carry in their pockets."

One of the Supreme Court's newer judges, Justice Sotomayor, expressed concern about government tracking of personal information in this new world of sensors and the Internet of Things. The Justice stated that she is "not beyond the belief that someday a provider could turn on my cell phone and listen to my conversations" because:

...right now we're only talking about the cell sites records, but as I understand it, a cell phone can be pinged in your bedroom. It can be pinged at your doctor's office. It can ping you in the most intimate details of your life. Presumably at some point even in a dressing room as you're undressing.

During oral argument, Justice Sotomayor continued to question the government's lawyers about law enforcement's right to access phone metadata without a search warrant:

I know people who take phones into public restrooms. They take them with them everywhere. It's an appendage now for some people. If it's not okay to put a beeper into someone's bedroom, why is it okay to use the signals that phone is using from that person's bedroom, made accessible to law enforcement without probable cause?

This case sounds a lot like the slew of Apple vs FBI cases, which I wrote about [here] and lectured about [here] last year. However the cases are different for a few reasons. After Apple refused to develop back-door software code to break into the San Bernardino terrorist's iPhone, the FBI hired an Israeli company to write the back-door code. For this reason, the FBI no longer needed Apple's assistance and the lawsuits were dropped. Also, the terrorist had used an outdated version of the iOS operating system that Apple no longer supported.

In my view, we are going to see many more cases involving law enforcement's ability to use technology to prosecute violent criminals like Carpenter as well as terrorists. The law is lagging behind technological development and needs to catch up with the times.


 

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