As we’ve followed the rapid development of Fourth Amendment jurisprudence related to cell site location information (CSLI), we’ve told you about several cases likely to garner review by the U.S. Supreme Court. Following our prediction last month that the Court would soon grant review in one of the cases we featured, the Court agreed to hear the case of Timothy Carpenter’s armed robbery convictions based, in part, on CSLI. The Court will consider whether warrants are needed to obtain historical cell site data during criminal investigations (Carpenter v. United States, 819 F.3d 880 (6th Cir. 2016), cert. granted, 2017 WL 2407484 (June 5, 2017)).
Just this month, the 5th Circuit became the second federal circuit court of appeals to hold that no warrant is required for prospective or real-time CSLI (see our analysis of United States v. Wallace and United States v. Riley). In both the Carpenter and Wallace cases, the courts relied on the third-party doctrine, holding that no “search” occurs because the phone user voluntarily reveals the CSLI to a third party—the cellular service provider—and investigators obtain the CSLI from the service provider. A number of state and federal courts have concurred that no warrant is required for historical CSLI, also relying on the third-party doctrine.
Some legal scholars, however, have voiced concern that the traditional third-party doctrine is due for an overhaul. It is based on cases dealing with paper bank records and pen register information from a landline telephone (United States v. Miller, 425 U.S. 435 (1976); Smith v. Maryland, 442 U.S. 735 (1979). In her concurring opinion in the GPS tracking case of United States v. Jones (132 S.Ct. 945 (2012)), Justice Sonia Sotomayor wrote that it “may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”
No matter what the outcome in Carpenter, the Court is almost certain to craft new privacy rules for the digital age. Should the defendant prevail, expect a landslide of challenges to CSLI evidence and related digital data seizures. The Court could easily use the Carpenter case to reshape, reform or reject the third-party doctrine in digital privacy matters.
Stay tuned! And in the meantime, check out our analysis of another challenge to CSLI—whether a warrant is required for real-time data.