Supreme Court Says Warrants Needed for Historical Cell-Site Location Data
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Friday, June 22, 2018

Supreme Court Says Warrants Needed for Historical Cell-Site Location Data

The Supreme Court ruled 5-4 today that a warrant based on probable cause is generally needed before law enforcement agents can obtain historical cell-site location information (CSLI). The decision is likely to pave the way for the protection under the Fourth Amendment of other digital data, according to supporters of the ruling.

Chief Justice John G. Roberts Jr. wrote the decision for the majority and was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan. Justice Anthony M. Kennedy wrote a dissenting opinion and was joined by Justices Clarence Thomas and Samuel A. Alito Jr.; Justice Thomas wrote a dissenting opinion; Justice Alito wrote a dissenting opinion and was joined by Justice Thomas; and Justice Neil M. Gorsuch wrote a dissenting opinion.

The case is the latest before the high court that centers on whether technological advances necessitate a change to Fourth Amendment legal principles to protect the privacy of Americans.

The case, “Carpenter v. United States” (case 16-402), centers on whether the government violated the Fourth Amendment when law enforcement authorities obtained, under the Stored Communications Act, which requires a lesser standard than probable cause, more than four months of historical CSLI for serial robbery suspects in the Detroit area. Authorities obtained records for 127 days for suspect Timothy Carpenter that revealed 12,898 location data points.

After being convicted, Mr. Carpenter appealed to the Sixth Circuit Court of Appeals (Cincinnati). That court ruled 2-1 that a warrant is not needed under the Fourth Amendment for the government to obtain access to historical CSLI.

But supporters of Mr. Carpenter’s argument said individuals have a reasonable expectation of privacy in their longer-term historical CSLI. Pre-digital cases concerning the third-party doctrine, which limits Fourth Amendment protections for records shared with third parties, should not govern this case, they said.

The Justice Department argued that the government’s acquisition of cell-site records from wireless service providers “did not constitute a Fourth Amendment search” because there is not a legitimate expectation of privacy in such third-party business records.

In mulling their decision, the justices considered earlier Fourth Amendment Supreme Court rulings, particularly “Katz v. United States,” a 1967 case in which the court extended Fourth Amendment protections to situations where a person has a “reasonable expectation of privacy”; “United States v. Miller,” a 1976 case in which the court held that banking records were business records and not the private papers of an individual; “Smith v. Maryland,” a 1979 case in which the court ruled that obtaining telephone numbers from a provider did not constitute a search under the Fourth Amendment; “United States v. Knotts,” a 1983 case in which the court said the police’s planting of a beeper that allowed authorities to briefly follow the defendant's vehicle was not a violation of the search ban under the Fourth Amendment; “United States v. Jones,” a 2012 case in which the court ruled that the government’s attachment of a Global Positioning System device to a person’s vehicle and its use of the device to monitor the movements of the vehicle constituted a search under the Fourth Amendment (TR Daily, Jan. 23, 2012); and “Riley v. California,” a 2014 case in which the court ruled that police searches of digital information on the mobile phones of people they have arrested require search warrants (TR Daily, June 25, 2014).

“We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information. In light of the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection. The Government’s acquisition of the cell-site records here was a search under that Amendment,” Chief Justice Roberts wrote in the majority opinion, which remanded the case to the lower court.

He noted that this case “does not fit neatly under existing precedents. Instead, requests for cell-site records lie at the intersection of two lines of cases, both of which inform our understanding of the privacy interests at stake. The first set of cases addresses a person’s expectation of privacy in his physical location and movements. … In a second set of decisions, the Court has drawn a line between what a person keeps to himself and what he shares with others. We have previously held that ‘a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.’”

“The question we confront today is how to apply the Fourth Amendment to a new phenomenon: the ability to chronicle a person’s past movements through the record of his cell phone signals. Such tracking partakes of many of the qualities of the GPS monitoring we considered in Jones. Much like GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic, and effortlessly compiled,” Chief Justice Roberts said.

“At the same time, the fact that the individual continuously reveals his location to his wireless carrier implicates the third-party principle of Smith and Miller. But while the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records. After all, when Smith was decided in 1979, few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements,” Chief Justice Roberts added.

“We decline to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cellphone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. The location information obtained from Carpenter’s wireless carriers was the product of a search,” the opinion declared.

“Mapping a cell phone’s location over the course of 127 days provides an all-encompassing record of the holder’s whereabouts. As with GPS information, the timestamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations,’” Chief Justice Roberts said. “And like GPS monitoring, cell phone tracking is remarkably easy, cheap, and efficient compared to traditional investigative tools. With just the click of a button, the Government can access each carrier’s deep repository of historical location information at practically no expense. In fact, historical cell-site records present even greater privacy concerns than the GPS monitoring of a vehicle we considered in Jones. Unlike the bugged container in Knotts or the car in Jones, a cell phone — almost a ‘feature of human anatomy,’ … tracks nearly exactly the movements of its owner. While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time. A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales. Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.

“Moreover, the retrospective quality of the data here gives police access to a category of information otherwise unknowable. In the past, attempts to reconstruct a person’s movements were limited by a dearth of records and the frailties of recollection,” the majority opinion said. “With access to CSLI, the Government can now travel back in time to retrace a person’s whereabouts, subject only to the retention polices of the wireless carriers, which currently maintain records for up to five years. Critically, because location information is continually logged for all of the 400 million devices in the United States — not just those belonging to persons who might happen to come under investigation — this newfound tracking capacity runs against everyone.”

“The Government’s primary contention to the contrary is that the third-party doctrine governs this case. In its view, cell-site records are fair game because they are ‘business records’ created and maintained by the wireless carriers. The Government (along with JUSTICE KENNEDY) recognizes that this case features new technology, but asserts that the legal question nonetheless turns on a garden-variety request for information from a third-party witness,” Chief Justice Roberts wrote. “The Government’s position fails to contend with the seismic shifts in digital technology that made possible the tracking of not only Carpenter’s location but also everyone else’s, not for a short period but for years and years. Sprint Corporation and its competitors are not your typical witnesses. Unlike the nosy neighbor who keeps an eye on comings and goings, they are ever alert, and their memory is nearly infallible. There is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today. The Government thus is not asking for a straightforward application of the third-party doctrine, but instead a significant extension of it to a distinct category of information.”

“Neither does the second rationale underlying the third-party doctrine — voluntary exposure — hold up when it comes to CSLI,” the opinion added. “Cell phone location information is not truly ‘shared’ as one normally understands the term. In the first place, cell phones and the services they provide are ‘such a pervasive and insistent part of daily life’ that carrying one is indispensable to participation in modern society. … Second, a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the part of the user beyond powering up.”

But Chief Justice Roberts cautioned, “Our decision today is a narrow one. We do not express a view on matters not before us: real-time CSLI or ‘tower dumps’ (a download of information on all the devices that connected to a particular cell site during a particular interval). We do not disturb the application of Smith and Miller or call into question conventional surveillance techniques and tools, such as security cameras. Nor do we address other business records that might incidentally reveal location information. Further, our opinion does not consider other collection techniques involving foreign affairs or national security. As Justice [Felix] Frankfurter noted when considering new innovations in airplanes and radios, the Court must tread carefully in such cases, to ensure that we do not ‘embarrass the future.’”

“Having found that the acquisition of Carpenter’s CSLI was a search, we also conclude that the Government must generally obtain a warrant supported by probable cause before acquiring such records,” Chief Justice Roberts continued. “Although the ‘ultimate measure of the constitutionality of a governmental search is “reasonableness,”’ our cases establish that warrantless searches are typically unreasonable where ‘a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing.’”

“This is certainly not to say that all orders compelling the production of documents will require a showing of probable cause,” the opinion added. “The Government will be able to use subpoenas to acquire records in the overwhelming majority of investigations. We hold only that a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party. Further, even though the Government will generally need a warrant to access CSLI, case-specific exceptions may support a warrantless search of an individual’s cell-site records under certain circumstances.” These can include emergency situations, it said.

In his dissent, Justice Kennedy said, “This case involves new technology, but the Court’s stark departure from relevant Fourth Amendment precedents and principles is, in my submission, unnecessary and incorrect, requiring this respectful dissent. The new rule the Court seems to formulate puts needed, reasonable, accepted, lawful, and congressionally authorized criminal investigations at serious risk in serious cases, often when law enforcement seeks to prevent the threat of violent crimes. And it places undue restrictions on the lawful and necessary enforcement powers exercised not only by the Federal Government, but also by law enforcement in every State and locality throughout the Nation. Adherence to this Court’s longstanding precedents and analytic framework would have been the proper and prudent way to resolve this case.”

Justice Kennedy noted that the Supreme Court “has twice held that individuals have no Fourth Amendment interests in business records which are possessed, owned, and controlled by a third party. … This is true even when the records contain personal and sensitive information. So when the Government uses a subpoena to obtain, for example, bank records, telephone records, and credit card statements from the businesses that create and keep these records, the Government does not engage in a search of the business’s customers within the meaning of the Fourth Amendment.

“In this case petitioner challenges the Government’s right to use compulsory process to obtain a now-common kind of business record: cell-site records held by cell phone service providers. The Government acquired the records through an investigative process enacted by Congress. Upon approval by a neutral magistrate, and based on the Government’s duty to show reasonable necessity, it authorizes the disclosure of records and information that are under the control and ownership of the cell phone service provider, not its customer. Petitioner acknowledges that the Government may obtain a wide variety of business records using compulsory process, and he does not ask the Court to revisit its precedents. Yet he argues that, under those same precedents, the Government searched his records when it used court-approved compulsory process to obtain the cell-site information at issue here,” Justice Kennedy said.

“This case should be resolved by interpreting accepted property principles as the baseline for reasonable expectations of privacy. Here the Government did not search anything over which Carpenter could assert ownership or control. Instead, it issued a court-authorized subpoena to a third party to disclose information it alone owned and controlled. That should suffice to resolve this case,” Justice Kennedy added. “Having concluded, however, that the Government searched Carpenter when it obtained cell-site records from his cell phone service providers, the proper resolution of this case should have been to remand for the Court of Appeals to determine in the first instance whether the search was reasonable. Most courts of appeals, believing themselves bound by Miller and Smith, have not grappled with this question. And the Court’s reflexive imposition of the warrant requirement obscures important and difficult issues, such as the scope of Congress’ power to authorize the Government to collect new forms of information using processes that deviate from traditional warrant procedures, and how the Fourth Amendment’s reasonableness requirement should apply when the Government uses compulsory process instead of engaging in an actual, physical search. These reasons all lead to this respectful dissent.”

Justice Thomas said the “case should not turn on ‘whether’ a search occurred. … It should turn, instead, on whose property was searched. The Fourth Amendment guarantees individuals the right to be secure from unreasonable searches of ‘their persons, houses, papers, and effects.’ … In other words, ‘each person has the right to be secure against unreasonable searches … in his own person, house, papers, and effects.’ … By obtaining the cell-site records of MetroPCS and Sprint, the Government did not search Carpenter’s property. He did not create the records, he does not maintain them, he cannot control them, and he cannot destroy them. Neither the terms of his contracts nor any provision of law makes the records his. The records belong to MetroPCS and Sprint.

“The Court concludes that, although the records are not Carpenter’s, the Government must get a warrant because Carpenter had a reasonable ‘expectation of privacy’ in the location information that they reveal,” the justice added. “I agree with JUSTICE KENNEDY, JUSTICE ALITO, JUSTICE GORSUCH, and every Court of Appeals to consider the question that this is not the best reading of our precedents.”

In his dissent, Justice Alito said that he shares “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.

“First, the Court ignores the basic distinction between an actual search (dispatching law enforcement officers to enter private premises and root through private papers and effects) and an order merely requiring a party to look through its own records and produce specified documents,” he said. “The former, which intrudes on personal privacy far more deeply, requires probable cause; the latter does not. Treating an order to produce like an actual search, as today’s decision does, is revolutionary. It violates both the original understanding of the Fourth Amendment and more than a century of Supreme Court precedent. Unless it is somehow restricted to the particular situation in the present case, the Court’s move will cause upheaval. Must every grand jury subpoena duces tecum be supported by probable cause? If so, investigations of terrorism, political corruption, white-collar crime, and many other offenses will be stymied. And what about subpoenas and other document-production orders issued by administrative agencies?”

“Second, the Court allows a defendant to object to the search of a third party’s property,” Justice Alito added. “This also is revolutionary. The Fourth Amendment protects ‘[t]he right of the people to be secure in their persons, houses, papers, and effects’ … not the persons, houses, papers, and effects of others. Until today, we have been careful to heed this fundamental feature of the Amendment’s text. This was true when the Fourth Amendment was tied to property law, and it remained true after Katz v. United States … broadened the Amendment’s reach. By departing dramatically from these fundamental principles, the Court destabilizes long-established Fourth Amendment doctrine. We will be making repairs — or picking up the pieces — for a long time to come.”

In his dissenting opinion, Justice Gorsuch said, “Our case offers a cautionary example. It seems to me entirely possible a person’s cell-site data could qualify as his papers or effects under existing law. Yes, the telephone carrier holds the information. But 47 U. S. C. §222 designates a customer’s cell-site location information as ‘customer proprietary network information’ (CPNI),§222(h)(1)(A), and gives customers certain rights to control use of and access to CPNI about themselves. The statute generally forbids a carrier to ‘use, disclose, or permit access to individually identifiable’ CPNI without the customer’s consent, except as needed to provide the customer’s telecommunications services. §222(c)(1). It also requires the carrier to disclose CPNI ‘upon affirmative written request by the customer, to any person designated by the customer.’ §222(c)(2). Congress even afforded customers a private cause of action for damages against carriers who violate the Act’s terms. §207. Plainly, customers have substantial legal interests in this information, including at least some right to include, exclude, and control its use. Those interests might even rise to the level of a property right.”

But he added, “The problem is that we do not know anything more. Before the district court and court of appeals, Mr. Carpenter pursued only a Katz ‘reasonable expectations’ argument. He did not invoke the law of property or any analogies to the common law, either there or in his petition for certiorari. Even in his merits brief before this Court, Mr. Carpenter’s discussion of his positive law rights in cell-site data was cursory. He offered no analysis, for example, of what rights state law might provide him in addition to those supplied by §222. In these circumstances, I cannot help but conclude — reluctantly — that Mr. Carpenter forfeited perhaps his most promising line of argument.

“Unfortunately, too, this case marks the second time this Term that individuals have forfeited Fourth Amendment arguments based on positive law by failing to preserve them,” Justice Gorsuch added. “Litigants have had fair notice since at least United States v. Jones (2012) and Florida v. Jardines (2013) that arguments like these may vindicate Fourth Amendment interests even where Katz arguments do not. Yet the arguments have gone unmade, leaving courts to the usual Katz hand-waving. These omissions do not serve the development of a sound or fully protective Fourth Amendment jurisprudence.”

The Justice Department declined to comment on today’s ruling.

But Mr. Carpenter’s attorneys and other supporting his case welcomed it and said it could clear the way for other digital information to be protected under the Fourth Amendment. The petitioners were supported by several privacy rights groups, tech companies, and others.

“This is a groundbreaking victory for Americans’ privacy rights in the digital age,” American Civil Liberties Union attorney Nathan Freed Wessler, who argued the case before the Supreme Court last November (TR Daily, Nov. 29, 2017), said in a statement. “The Supreme Court has given privacy law an update that it has badly needed for many years, finally bringing it in line with the realities of modern life. The government can no longer claim that the mere act of using technology eliminates the Fourth Amendment’s protections. Today’s decision rightly recognizes the need to protect the highly sensitive location data from our cell phones, but it also provides a path forward for safeguarding other sensitive digital information in future cases — from our emails, smart home appliances, and technology that is yet to be invented.”

Mr. Wessler said during a conference call with reporters this afternoon that while today’s court decision was tailored only to historical CSLI, “in future cases, we fully expect the courts will be able to now, for the first time, accurately assess the particular privacy interests at stake for [other] kinds of [digital] information and apply the appropriate protections under the Fourth Amendment.”

Mentioning real-time CSLI tracking, or cell-tower dumps, and the use of cell-site simulators, he added that “all of those other kinds of location tracking raise very similar privacy concerns, and I think it’s fair to say that arguments in favor of stronger protections there will stand on a very firm foundation after today’s opinion.”

He also said that many federal and state courts already require warrants based on probable cause.

Mr. Wessler acknowledged that the Supreme Court’s majority said authorities could still get historical CSLI in exigent cases, but he said that “those are relatively rare circumstances compared to the number of cases where warrants are obtained.”

He also said he disagreed with Justice Gorsuch that Mr. Carpenter had forfeited his property-right argument.

“We are extremely gratified by the Supreme Court’s ruling today that cell phone location data is protected by the Fourth Amendment,” said Andrew Crocker, a staff attorney for the Electronic Frontier Foundation. “We’re still analyzing the opinion, but the Court sent a strong message by recognizing that cell phone tracking has the capability to lay private lives bare to government inspection. Equally as important, the rejected the government’s tired argument that sensitive data held by third parties is automatically devoid of constitutional protection. Like the Internet, cell phones are all but essential to modern life, and for years, EFF has fought in courts, legislatures, and public to update the law to protect individuals’ privacy as they move through the world. This is a major victory, and we hope it signals the eventual demise of the Third Party Doctrine for good.”

“This case has enormous implications for privacy in the digital age,” added Greg Nojeim, director of Center for Democracy & Technology’s Freedom, Security & Technology Project. “The Court’s reasoning in this case will be applied to other collections of data, making the Fourth Amendment much more relevant to our digital lives. Prior to this decision concerning metadata, content was the only communications information that required a warrant under the Fourth Amendment when held by a third party.”

“The Supreme Court’s message today is simple: if the government wants to get records about your cell phone’s location, it has to get a warrant. This is a landmark victory for digital privacy, and hopefully marks the beginning of the end of the ‘third-party doctrine,’ which says that the Fourth Amendment doesn’t protect our privacy when it comes to the records of our activities that companies collect about us,” said Kevin Bankston, director of the New America Foundation’s Open Technology Institute. “This outdated legal rule has grown more and more dangerous, and has given the government more and more power to invade our privacy without warrants, as the amount of digital data about our physical and virtual comings and goings has sharply expanded.

“Thankfully, although the Court framed its decision narrowly, Carpenter’s reasoning takes a sledgehammer to the foundations of the third-party doctrine and leaves room for a complete remodeling of the Fourth Amendment that is consistent with the realities of 21st century technology,” Mr. Bankston added. “In the meantime, Congress should follow the Court’s lead and update our decades-old electronic privacy statutes to clearly require warrants for location data, and to better protect the many other types of sensitive digital records we all generate simply by living in an increasingly connected world.”

“We are encouraged by the Court’s decision to afford location information stored with mobile service providers the level of Fourth Amendment protection that users expect for all their digitally-maintained data. This decision will provide users with the confidence that the sensitive location data they share with innovative digital devices and services will only be disclosed to law enforcement with a warrant based on probable cause,” said Ed Black, president and chief executive officer of the Computer & Communications Industry Association. “Storage of location data with service providers is an increasingly necessary part of digital life, and will only become more essential as more connected devices come online. While the Court’s decision is narrow, its reasoning could have significant impact on the future application of the Fourth Amendment’s protections to digital data.”

Daniel Castro, vice president of the Information Technology and Innovation Foundation, said, “Time and again, we see that the biggest threat to consumer privacy is not what data companies collect about individuals, but whether the government forces companies to turn over that data without protecting the civil liberties of its citizens. Today’s ruling rightly concluded that the Fourth Amendment protections apply to the detailed historical location data collected by mobile carriers about their users and that law enforcement must show probable cause to obtain a warrant that requires companies to turn over this information. This ruling will uphold consumer’s legitimate expectations of privacy and is sufficiently targeted and narrow to avoid having negative repercussions on emerging technologies.”

“The Carpenter decision is a great victory for Americans’ privacy rights,” said Ashkhen Kazaryan, legal fellow at TechFreedom. “This ruling recognizes the immensely sensitive nature of cell phone location data, and rightly requires a showing of probable cause before law enforcement can obtain location information from mobile carriers. Our country’s Founders would have expected no lesser safeguards to apply to non-stop surveillance. Indeed, the American Revolution was first instigated over surveillance that was far less invasive.”

Morgan Reed, president of ACT, which represents apps developers, said, “We applaud the Supreme Court decision to require warrants to collect location data from cell phone users. In our modern age, mobile phones have become the ubiquitous keepers of consumers’ private and personal data – holding that data to a different warrant standard would undermine the privacy rights afforded to American citizens and the businesses entrusted with their sensitive data. We have long argued that law enforcement should be required to obtain warrants to access communications data in all cases, regardless of where or how long the data is stored. This Supreme Court action marks a step in the right direction.

“The United States is home to many of the world’s leaders and innovators in technology. We must update our antiquated laws governing electronic communications to reflect the new and dynamic ways we store, access, and share communications data,” Mr. Reed added “Today’s decision offers an important opportunity to urge Congress to reform the thirty-year-old Electronic Communications Privacy Act and establish a warrant standard for the myriad data shared across our communications networks.”

Ryan Radia, research fellow and regulatory counsel for the Competitive Enterprise Institute, said, “Today's Supreme Court decision is a victory for Americans' privacy, as the court recognized that the government conducts a search when it tracks our cell phone location history. The court reversed the Sixth Circuit, ruling that Carpenter's Fourth Amendment rights were violated when he was convicted based on cell phone tracking data collected by law enforcement without a search warrant. Now, when the government wants to force a mobile carrier to hand over a week or more of a person's location information, it must first obtain a search warrant based upon a showing of probable cause.

“Although the court’s opinion was narrowly crafted to address the particular facts in this case, its decision underscores the court's willingness to apply rigorous scrutiny to governmental surveillance involving new technologies,” Mr. Radia added. “In the United States, the Constitution protects people from unreasonable searches and seizures, and Fourth Amendment protection should apply to private information held on or collected through our personal devices.”

Members of Congress also welcomed the ruling.

“Today’s ruling strikes a blow against the creeping expansion of government intrusion into the most personal parts of Americans’ lives. The court’s recognition that digital devices can generate ‘near-perfect surveillance’ of a person’s private life is a validation of the vital protections against unreasonable search and seizure provided by our Constitution,” said Sen. Ron Wyden (D., Ore.). “I have argued for years that the sheer volume of information about every single American that is collected by our phones and computers requires a fundamental rethinking of the idea that giving your information to a company means the government can get it too. This ‘third-party doctrine’ is simply out of step with the way we live now. Today’s ruling is another welcome step toward undoing that principle.”

“SCOTUS today updated the 4th amendment for the 21st century digital world,” said Sen. Ed Markey (D., Mass.). “Where we go or where we have been is sensitive information that should only be revealed to law enforcement with a warrant. The Court’s decision takes a big step forward for privacy by saying the government can’t track a person’s past movements through the records of their cell phone signal without probable cause. Police need a warrant to search an individual’s home, and that will now be the standard for mobile phone location records, as well. We need to continue to update our laws to protect the privacy of Americans in this increasingly digital world.”

“The Supreme Court’s decision perfectly illustrates that old legal constructions, like the third-party doctrine, struggle to keep up with our ‘seismic shifts in digital technology.’ As more and more of our sensitive information is held by third parties, this decision is a step forward in ensuring that our most private information — our communications, our photos, our financial and medical records, our every location — receives the Fourth Amendment protection it deserves,” said Sen. Patrick Leahy (D., Vt.), a member of the Senate Judiciary Committee and a sponsor of the bipartisan Electronic Communications Privacy Act (ECPA) Modernization Act (S 1657).

“But Congress must not rely on the courts to modernize our antiquated privacy laws. My ECPA Modernization Act, which I introduced with Senator [Mike] Lee [R., Utah], would have required a warrant for precisely the type of geolocation information at issue in Carpenter,” Sen. Leahy added. “It would also close other major loopholes in protecting our Fourth Amendment privacy rights, like requiring a warrant for electronic content. Congress must not abdicate its own responsibilities as technology advances, and it should quickly take up our legislation to accomplish these key reforms.”- Paul Kirby, paul.kirby@wolterskluwer.com

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