CARPENTER v. THE U.S.: IS RETRIEVAL OF YOUR HISTORICAL LOCATION DATA SUBJECT TO COMPELLED DISCLOSURE
It’s Friday night, you stopped off to “pick up some milk” on your way home, and it took you a few hours. But you didn’t necessarily tell anyone you were going to “pick up some milk.” You are late getting home, and you are greeted with, “where have you been.” Your first instinct may be to create an alternative story about your location. Seemingly, that instinct kicks in because you believe the knowledge of your location is private. In fact, it seems reasonable to expect the knowledge of your location to be private because knowledge of your location may suggest much more than where you are at a given time.
In the context of this hypothetical, if you told your wife what you were really doing you may get in hot water, therefore the story about "picking up milk" is a measure to keep what it is that you consider private, private, even from your spouse.
With the proliferation of modern technologies, like GPS, cell phones, Internet, tracking software, and surveillance cameras, the ability to discover one’s “location” has become expansive. So much so that, it’s becoming increasingly necessary to prevent certain actors from obtaining an accounting of your locations and movements over a period of time. Especially government actors. Many agree that an accounting of your past and current locations over a period of time is private, not just individually, but objectively.
The U.S. Constitution safeguards against unreasonable intrusions into your objectively private spaces. The 4th Amendment defines these unreasonable intrusions into our private spaces as “searches,” requiring a showing of probable cause when a government actor wants access.
Under the 4th Amendment, the ability for the government to intrude into your private space is based on whether there is a reasonable expectation of privacy in that space, both subjectively and objectively, and if there is an objectively reasonable expectation of privacy in a certain space, the government must obtain a warrant based on probable cause to have access. You know the drill, if the police want to search something like the inside of your house, they need consent, or a warrant issued by a neutral magistrate, based on probable cause, to do so.
Currently, the Supreme Court is set to hear Carpenter v. United States[1] and seeks to determine whether compelled disclosure of historical cell phone records that reveal the location and movements of a cell-phone user, over the course of 127 days is considered a search under the 4th Amendment, requiring a warrant to compel the disclosure absent a special circumstance.
This case bumps right against provisions in the Stored Communicates Act (SCA), where government may access information stored on wired and electronic communication devices, like cell phones, from 3rd parties under certain conditions. Under the SCA, the government merely needs to show “specific and articulable facts” indicating “that there are reasonable grounds to believe” that the records sought are relevant and material to an ongoing criminal investigation. If the government obtains historical cell data under this standard then it can require service providers to disclose an accounting of your past locations, over a period of time without the high burden of showing probable cause.[2]
The Supreme Court has many considerations before it: the necessity for law enforcement to be able to obtain these kinds of records, the privacy of consumers who use cell phones, and needs to further explore the underpinnings of the 4th Amendment and the SCA.[3]
Fortunately, the Supreme Court has plenty of guidance on how to grapple with these issues, as in previous cases, specifically in, United States v. Jones; at least one Supreme Court Justice indicates that courts may need to reconsider the spaces where people have a reasonable expectation of privacy. It will be interesting for sure. I know, I’ll be watching.[4]
Read more here:
[2] Id.
[4] https://scholar.google.com/scholar_case?case=6122276400056758151&q=US+v.+Jones&hl=en&as_sdt=2003