“Pinning” Down the Government’s Right to Cell Phone Data

It’s estimated that Americans check their phones once every twelve minutes.  They are empowering, life-changing, destructive, and addictive. Small enough to fit in your pocket, they are powerful enough to track your every move.  

Cell phones and government use of cell phone informationAcross the United States, there are approximately 396 million cell phones, collecting and storing data. Cell phone carriers and providers receive nearly up to the minute tracking of device user’s movements, numbers dialed, and internet search history.  A cell phone drops digital pins everywhere a person goes, which can be compiled to cast a profile of where a person is, who he is talking to, and what he is looking at.

This kind of data can be used for many good things– like solving crime.  But, it can also invade the very essence of our constitutional rights. So, just what are the government’s rights to cell phone data?

Recently, the Supreme Court decided a major case regarding the government’s access to cell phone data. The question before the Court was the application of the 4th amendment (which prohibits unreasonable search and seizure) to the digital phenomenon, cell phones and more specifically, the loads of information captured by cell phones.

Carpenter v. United States

In the recent case of Carpenter v. United States, the Supreme Court  considered the issue of personal cell phone privacy. The case centered on a string of armed robberies in Michigan and Ohio. The assailants entered Radio Shack and T-Mobile stores, beginning in 2010, demanding phones, and then escaping after ordering everyone to the back of the store.

After the arrest of four men in April 2011, one of the suspects confessed and allowed access to his personal cell phone. Sixteen phone numbers dialed near the time of the robberies were tracked and one of the numbers was traced to Carpenter. The FBI used the information to apply for records which captured 12,898 location points that cataloged Carpenter’s movements over a span of several days, averaging 101 data points per day over the time period it was collected. The FBI used that data to create detailed maps which, they argued, placed Carpenter near the scenes of the robberies at the time of the robberies. He was later convicted of being the mastermind behind the robberies and sentenced to over 100 years in prison (which he appealed).

The Supreme Court heard arguments wherein the government maintained Carpenter had no legitimate expectation of privacy of his personal information because he voluntarily provided it to his cell phone service provider. Essentially, by using a phone, he agreed to give up information freely and could ‘opt-out’ by not using the phone. In older decisions, the Court has previously allowed access to information a person voluntarily turns over to third parties, even if that person holds an assumption that the information will be used only for a limited purpose.

Supreme Court’s Decision

In a 5-4 decision favoring Carpenter, the Court determined the government usage of his cell phone records without a warrant constituted an unreasonable search and seizure. Carpenter’s arguments proved more persuasive where data logs, collected by cell phone companies, are vastly more intrusive than constitutional  framers could have readily imagined. The justices looked to the past for guideposts from previous cases. Their remarks referenced a decision from 1886 to apply the intent of the 4th amendment, to secure “‘the privacies of life’ against ‘arbitrary power.’”

The Court went on to state that “(t)he Government’s position fails to contend with the seismic shifts in digital technology…” and that this sort of encyclopedia of digital data collected could not possibly fit neatly into existing precedents. Accessing private locational data about the whereabouts was deemed too intrusive and Carpenter’s records were entitled to more privacy protection. Without a warrant, the search of Carpenter’s records was illegal.

How This Affects You

This case turns on reasonable expectations of privacy in dealing with technology and your personal cell phone data. If you have concerns over the usage of your phone in a criminal matter, the best advice is to immediately contact an experienced criminal defense attorney to sort out what rights you have.  If you have any additional questions, feel free to contact attorney Joe Edwards at (614)309-0243, who has over 25 years experience representing individuals at the state and federal level.


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