eDiscovery Daily Blog

• July 24, 2018

eDiscovery Case Week continues!  We’re catching up on cases leading up to our webcast tomorrow where Tom O’Connor and I will be talking about key eDiscovery case law for the first half of 2018.  With that in mind, this is a key case decision that happened when I was on a family vacation last month.  Did you miss it?  In case you did, here it is.

In Carpenter v. U.S., No. 16–402 (U.S. June 22, 2018), The United States Supreme Court (SCOTUS) held, in a 5–4 decision authored by Chief Justice Roberts, that the government violates the Fourth Amendment to the United States Constitution by accessing historical records containing the physical locations of cellphones without a search warrant.

In 2011, Timothy Carpenter was arrested on suspicion of participating in a string of armed robberies at RadioShack and T-Mobile stores in Michigan and Ohio. In the course of the investigation, FBI agents acquired transactional records from Carpenter’s cell phone carrier. The government sought this data pursuant to the Stored Communications Act of 1986, which allows law enforcement to obtain communications records by demonstrating “specific and articulable facts” that the records are relevant to an ongoing investigation, rather than probable cause that a crime has been committed. The trial court denied Carpenter’s motion to suppress the records, and a jury convicted him of firearms violations and violations of the Hobbs Act. On appeal, Carpenter maintained that the acquisition of his cellular data without a warrant violated his Fourth Amendment rights, but the Sixth Circuit held that such a seizure did not constitute a “search” under the Fourth Amendment.  Carpenter petitioned to have the case heard by SCOTUS, which heard arguments in November 2017.

The Court issued its decision on June 22, 2018, with the court split 5–4 to reverse and remand the decision by the lower courts. In a very lengthy ruling, Chief Justice Roberts wrote the majority opinion, with associate Justices Ginsburg, Breyer, Sotomayor, and Kagan joining Roberts’ opinion. The majority determined that the third-party doctrine applied to telephone communications in Smith v. Maryland could not be applied to cellphone technology and ruled that the government must obtain a warrant in order to access historical cellphone records. Roberts argued that technology “has afforded law enforcement a powerful new tool to carry out its important responsibilities. At the same time, this tool risks Government encroachment of the sort the Framers [of the US Constitution], after consulting the lessons of history, drafted the Fourth Amendment to prevent.”

Roberts also considered that “detailed, encyclopedic and effortlessly” tracking a person by cell towers was similar to that of using a Global Positioning System (GPS) tracking device as determined by United States v. Jones. Roberts stressed that the decision is a very narrow ruling; it does not affect other parts of the third-party doctrine, such as banking records, nor does it prevent collection of cell tower data without a warrant in emergencies or for national security issues.

Justices Kennedy, Thomas, Alito, and Gorsuch each wrote dissenting opinions.  Justice Alito wrote in his dissent:

“I share the Court’s concern about the effect of new technology on personal privacy, but I fear that today’s decision will do far more harm than good. The Court’s reasoning fractures two fundamental pillars of Fourth Amendment law, and in doing so, it guarantees a blizzard of litigation while threatening many legitimate and valuable investigative practices upon which law enforcement has rightfully come to rely.”

So, what do you think?  Does this ruling appropriately limit law enforcement use of private cell phone location data without a warrant or does it hamstring the ability for law enforcement to adequately investigate suspects?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

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