The United States Supreme Court to consider whether the police need warrants to obtain cellphone location data

June 11, 2017 |

The US Supreme Court has in recent times considered the use of new technologies and their privacy intrusive consequences and whether they constitute a constitutional breach.  In 2012 the Court in United States v Jones held that installing a GPS tracking device on a vehicle and using the device to monitor the vehicle’s movements constitutes a search under the Fourth Amendment. In Riley v California the Court unanimously held that the warrantless search and seizure of digital contents of a mobile phone during an arrest was unconstitutional.

On 5 June 2017 the Supreme Court  agreed to hear arguments in the October Term in Carpenter v United States as to whether police should obtain warrants to obtain location data of suspects.

The question presented to the Court is:

In this case, as in thousands of cases each year, the government sought and obtained the historical cell phone location data of a private individual pursuant to a disclosure order under the Stored Communications Act (SCA) rather than by securing a warrant. Under the SCA, a disclosure order does not require a finding of probable cause. Instead, the SCA authorizes the issuance of a disclosure order whenever the government “offers specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d).
As a result, the district court never made a probable cause finding before ordering Petitioner’s service provider to disclose months’ worth of Petitioner’s cell phone location records. A divided panel of the Sixth Circuit held that there is no reasonable expectation of privacy in these location records, relying in large part on four-decade-old decisions of this Court.
The Question Presented is:
Whether the warrantless seizure and search of historical cell phone records revealing
the location and movements of a cell phone user over the course of 127 days is permitted by
the Fourth Amendment.

In short compass, is collecting such data without a warrant is a unreasonable search and seizure under the Fourth Amendment.

The Cato Institute, a Libertarian think tank, has filed a very interesting and cogent amicus brief as has the Electronic Frontiers Foundation.  Both are strongly in favour of the applicant and for a ruling that the use of location data is covered by the Fourth Amendment.

While this decision has no bearing on Australian law the principles discussed in Supreme Court decisions are generally more far reaching than Australian decisions.  They provide useful analysis of the issues.

One Response to “The United States Supreme Court to consider whether the police need warrants to obtain cellphone location data”

  1. The United States Supreme Court to consider whether the police need warrants to obtain cellphone location data | Australian Law Blogs June 11th, 2017

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