Do Police Need Search Warrants to Access Digital Information? The Importance of Carpenter v. United States
Anyone in Texas that has a cellphone needs to know about a case that is before the Supreme Court of the United States (SCOTUS) right now. The case is filed as Case No. 16-402 and styled Carpenter v. United States. You can follow it here on the SCOTUS online docket.
Why This SCOTUS Case is So Important
Many believe that this single case is the most important case involving the Fourth Amendment of the United States Constitution that to be decided in decades.
The Fourth Amendment protects your right to privacy against government intrusion. Like your right to privacy regarding what’s stored on your phone. Or by your carrier or digital company. Carpenter is going to decide how much access the police have to your phone’s contents (and other digital information) under search and seizure law.
Background of Carpenter v. United States
The case comes out of the Sixth Circuit (read their opinion here). Timothy Ivory Carpenter was convicted of federal armed robbery charges in a Michigan jury trial. He appealed that conviction (with the help of the ACLU). The Sixth Circuit Court of Appeals affirmed the trial court; Carpenter petitioned SCOTUS and the High Court agreed to review the case.
Key here is the evidence used by the federal prosecutor in Carpenter’s trial. Specifically, how they got cellphone tower tracking and Carpenter’s phone records, which they used against him to get that conviction.
Series of Armed Robberies Lead to Arrests
The story begins back in the fall of 2010, when a series of armed robberies began in Michigan and Ohio. See, Carpenter’s Petition for Writ of Certiorari.
The robbers would saunter into stores like Radio Shack, displaying their guns, and demand that employees fill bags with smartphones. They had several successful heists. Then, some of the gang got caught by the FBI in April 2011.
One of those arrested made a deal with the Feds. He confessed. And he gave the agents his phone voluntarily, so they could check out everything that was on it.
FBI Gets Phone Records Without Search Warrant or Probable Cause
From that search, the FBI found 16 phone numbers of interest to them. They went to a federal magistrate judge and got judicial approval under the Stored Communications Act to get “transactional records” for these 16 different phone numbers. Several wireless phone companies were involved here; not all these phone numbers were with the same carrier.
This was not a warrant. The agents did not have to show “probable cause” before they got the judge’s okay to go after information discovered on the phone.
Under the Stored Communications Act, they only had to show “reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”
FBI Uses Phone Information from Various Phone Carriers to Find Carpenter
Using the 16 different phone numbers, they reviewed cell-site records for each of the numbers. The FBI figured out that:
- Carpenter’s phone was connecting with these cell phone towers at the time.
- Carpenter’s phone was within 2 miles of four of the armed robberies at the times that the crimes occurred.
So, FBI agents tracked down Carpenter and arrested him with (1) aiding and abetting a robbery that affected interstate commerce and (2) aiding and abetting the use or carriage of a firearm during a federal crime of violence (armed robbery).
Carpenter was convicted. He was sentenced to 1395 months (that’s over 116 years) in prison by the federal judge.
Big Issue in Carpenter v. United States
The only question that is being answered by SCOTUS in this case is this one:
Whether the warrantless seizure and search of historical cellphone records revealing the location and movement of the cellphone user over the course of 127 days is permitted by the Fourth Amendment.
Here’s the thing. The government uses the Stored Communications Act (SCA) all the time. When the SCA is used by investigators, they don’t have to worry about establishing probable cause. The judge doesn’t either. 18 U.S.C. § 2703(d).
All they need under the SCA is a “disclosure order.” That’s not a search warrant. A warrant must be established on probable cause.
Why? Because the Fourth Amendment of the U.S. Constitution demands it.
Carpenter is arguing for himself – and for all of us – that there is a reasonable expectation of privacy in the location records kept by the phone carrier and therefore the search and seizure by the FBI in his case was unconstitutional.
Powerhouse “Friends of the Court” Briefs Filed With SCOTUS
This is an issue that impacts anyone who uses a cellphone or smartphone. Or anyone who relies upon digital information and technology. Like email, or cloud storage.
EFF Files Amicus Brief
So, within weeks of the Carpenter case being presented to SCOTUS for considered, the Electronic Frontier Foundation filed the first amicus curiae brief. The EFF Brief can be read here.
“Amicus curiae” is a Latin term used for a “friend of the court” who files additional legal argument and authority with the court for its consideration. Amicus briefs are filed in big cases, where the issues are important to a large portion of the general public.
Cato Institute Files Amicus Brief
The Cato Institute filed its amicus brief the same day. The Cato Brief can be read here.
Major Tech Companies File Joint Amicus Brief
And while it doesn’t appear on the SCOTUS docket yet, a huge amicus brief has just been filed in the case by the Big Tech companies. They are: Airbnb; Apple Inc.; Cisco; Dropbox; Evernote; Facebook; Google; Microsoft; Mozilla; Nest Labs; Oath (subsidiary of Verizon); Snapchat; Twitter; and Verizon.
From this brief (page 11), these Tech Companies argue:
“No constitutional doctrine should presume that consumers assume the risk of warrantless government surveillance simply by using technologies that are beneficial and increasingly integrated into modern life.
“Similarly, the fact that certain digitally transmitted information might have been traditionally classified as “non-content” should not unconditionally bar Fourth Amendment protection, as this data can often be highly revealing of the intimate details of a user’s life.”
They argue that this case involves more than the guilt or innocence of Mr. Carpenter. They are not addressing his criminal case.
Instead, they urge SCOTUS to consider that customers of all these companies “understand that data is collected by service providers as part of providing digital technologies, [and] customers still expect privacy with respect to other parties, including the government.”
What This Means for All of Us (Not Just Criminal Defense Lawyers)
So, how far can law enforcement snoop into digital information collected by companies providing digital services to you? Do they need to show probable cause and get a search warrant in order to do so?
Have you assumed that all that digital information collected by your providers – like Dropbox, Verizon, Facebook, or Google, is private – and that the government cannot read or use it without getting a search warrant?
Betcha you do. Well, whether or not that expectation of privacy is going to be respected and protected under the Fourth Amendment is being decided right now. In Carpenter v. United States.
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