How and when can the government see your cell-site location information?

When Can the Government Access the Location Records on Your Cell-Phone? The Stored Communications Act No Longer Fully Applies

Author: Kiersten A. Fowler

Case citation: Carpenter v. U.S., No. 16–402 (U.S. June 22, 2018).

Employee/Personnel/Employer Implicated: FBI personnel and police officers involved in the investigation.

eLesson Learned: Under the Fourth Amendment, government officials can no longer use the Stored Communications Act to gain access to your cell-site location information on your cellular device unless they have a properly executed search warrant.

Tweet This: “Ava was here!” Ever seen something similar? Your cell phone does this to you constantly. Learn how to protect that info.

At some point in our lives, we’ve seen a public item vandalized with “[Name] was here.” Well, your cell phone does that to you several times every minute! Whether you know it or not, your cell phone is tracking your every movement, in fact, it has to in order to work. Cell phones need to scan the environment constantly in order to obtain the best signal for the user and most modern devices tap into wireless networks frequently, regardless of if the owner is currently using the phone or its features. However, what happens when the government wants that information to investigate a crime?

When a cell phone connects to a network, those are called “cell sites,” and each time within that minute that your phone connects to one, it leaves a time-stamped record called cell-site location information (CSLI). To put this in perspective, in 2018, the United States was home to 326 million people, yet there were an estimated 396 million cell phone service accounts. Just think of how many CSLIs must exist based on those voluminous numbers. So, it makes sense why the government would want access to that information during investigations, but what about an individual’s right to privacy?

In Carpenter v. U.S., the court was presented with that question, a question debated for centuries: what should be done when an individual’s privacy rights are put against the need for protection, protection that is secured through government investigations. The holding, in this case, was unprecedented. In a 5-4 decision, Justice Roberts held that the Government is NOT able to access historical cell phone records that comprehensively expose the user’s past movements chronologically under the Fourth Amendment.

This groundbreaking decision in 2018 found its origins back in 2011 when the FBI was investigating a group of serial radio-shack and (ironically) T-Mobile store robbers in Detroit who were already arrested. Prosecutors moved to obtain many of the subjects’ cell phone records under the Stored Communications Act. (SPOILER ALERT: the holding literally “broke” parts of that act, completely changing the privacy rights of individuals.) Carpenter, one of the defendants, fought back, arguing that the cell-site data should be suppressed because it was obtained without a warrant supported by probable cause; a direct violation of the Fourth Amendment.

Lower courts denied the motion, but SCOTUS (or at least the majority), felt differently. With privacy interests at stake, the court grappled with similar ideas such as the third-party principle, which allows the government to look at telephone numbers and bank records because cell phone carriers and banks are considered “third parties.” Justice Roberts made a powerful distinction due to the unique nature of cell phone location records: detailed, encyclopedic, and effortlessly compiled. There is a legitimate expectation of privacy to keep these CSLIs to the individual because a person does not completely surrender their Constitutional Right just by venturing out into the public sphere.

I mean think about it, if the Court ruled otherwise, we would all essentially be allowing law enforcement to secretly monitor and catalog an individual’s every single movement because access to CSLI records gives them just that. Justice Roberts even went as far as to compare a cell phone to a “feature of human anatomy.” We carry our cell phones everywhere, in our pockets at all times, and the cell phone faithfully follows all while gathering this sensitive location data in order to function. I like to think of it as your own personal tracking device!

The lesson here is no lesson at all, but instead, an opportunity for you to know your rights and feel secure in Supreme Court’s protection of your privacy (or at least in this narrow and rare circumstance). Feel free to roam the public sphere! However, know this: the government can overcome your Fourth Amendment rights with a search warrant based on probable cause and with reasonable grounds that the records are relevant and material to the investigation. Justice Roberts was sure to remind us all of that in his opinion.

This case will surely be applied to a broad range of technological issues, including e-discovery, especially as technology develops more and more. The progress of science in technology should not erode Fourth Amendment protections. As Justice Brandeis once said in a dissent from 1928, the court is obligated to maintain those Constitutional Protections as invading privacy becomes more easily accessible to the government. That obligation still applies almost 100 years later.

With that, if you are a government officer, know that science has granted you a new and powerful tool in carrying out your responsibilities. But with great power comes great responsibility, so get a search warrant. And to all others, if find yourself in trouble with the law, don’t be so quick to assume you’ll be safe from “big brother.” Remember, your phone or watching you (well tracking your every movement – but close enough, right?).

Kiersten Fowler earned a B.S. in Biochemistry and a B.A. in Classical Studies from Seton Hall University in the highly regarded Honors Program. She is currently pursuing her J.D. at Seton Hall University School of Law (Class of 2019). After law school, Kiersten will be working for Haug Partners, LLP, a mid-sized Intellectual Property firm in Manhattan. She is hoping to specialize in both patent litigation and patent procurement, but is open to exploring other areas of IP Law during her career.

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