Fourth Amendment Showdown The Supreme Court takes up phone searches in the digital age.
https://www.wsj.com/articles/fourth-amendment-showdown-1511915381
How difficult should it be for law enforcement to get cellphone records showing a suspect’s past location? That’s the question before the Supreme Court on Wednesday in Carpenter v. U.S., which challenges decades of Fourth Amendment law.
Timothy Carpenter is serving 116 years in prison for a string of armed robberies. During the investigation, the government obtained 127 days of location data from Carpenter’s wireless carrier, showing that his phone connected to cell towers near the crime scenes.
The first question is whether this constitutes an “unreasonable search,” which would trigger Fourth Amendment protections requiring a warrant. The government says no, arguing the location data didn’t belong to Carpenter, but were business records created by the phone company. This distinction is important, since it invokes the “third-party doctrine” that police investigations have relied on for decades.
This doctrine mirrors the basic idea that law enforcement may gather evidence from witnesses. Just as police can canvass neighborhood shopkeepers, they ought to be able to ask a phone carrier whether its network “saw” the suspect. Ten minutes before the robbery, did he make a call that was handled by a cell tower down the street? Or was he texting in Toledo?
Carpenter says long-term data from cellphones represents something new: an “unprecedented surveillance time machine.” He does not dispute that police can get location records covering a short term—say, 24 hours—without a warrant. But he argues that tracking a suspect’s routine movements for 127 days is qualitatively different.
There may be an appetite on the Court for this idea. In a 2012 case, Justice Samuel Alito argued that police were free to follow a suspect around town, but that “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” Four other Justices agreed.
Yet civil libertarians want more. Several groups have filed briefs making the maximalist claim that law enforcement should need a warrant before getting any cellphone location data. In that same 2012 case, Justice Sonia Sotomayor floated the idea of ditching the third-party doctrine. “It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” she wrote. “This approach is ill suited to the digital age.”
That would be a mistake. The routing data from cellphone calls does not reveal the content of any communication, but it can be invaluable at the start of a police investigation, before probable cause exists to justify a warrant. In 2011 a federal judge in Jacksonville, Fla., was sitting in his living room when a rifle bullet came through his window, missing his head by inches. There were no witnesses and dozens of potential suspects. With phone location records, police were able to exclude many, and within 48 hours they found their man.
It’s also important to know that Congress created the legal framework for getting this data. Police must present “specific and articulable facts” showing that the records are “relevant and material to an ongoing criminal investigation.” A judge must sign off. If more protections are needed, Congress can add them. But where is the process misused today? If the threat of abuse is as large as privacy activists claim, they ought to be able to find a better champion than Timothy Carpenter.
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