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Victory for the Fourth Amendment: Cell Phone Location Data Requires Warrant

             6/26/2018

Supreme Court

                                                                                                                                                                                                                                                 

In a major victory for privacy rights activists, the Supreme Court has ruled 5-4 that law enforcement generally requires a warrant to track an individual's location through cell phone records.

In the majority opinion in Carpenter v. United States, Chief Justice John Roberts stated that since cell phones play a "pervasive and insistent part of daily life," what had once been a powerful tool for law enforcement has become an encroachment on the Fourth Amendment.

Roberts was the sole conservative judge in the majority, with all four liberal judges, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joining.

“We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information,” Roberts wrote. “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.”

In their dissenting opinions, conservative justices argued that since the information is turned over voluntarily to a third party, there is no expectation of privacy. This so-called Third-Party Doctrine has been in effect since 1976 when the Supreme Court ruled bank records could be obtained without a warrant. That ruling has since been applied to medical records, phone records, and even email.

Additionally, the 1986 Stored Communications Act states that governments do not need probable cause to obtain archived customer records kept by the phone companies for business purposes.

But with the rapid advancement of technology and the near ubiquitous presence of cell phones and their ability to track one's location with pinpoint accuracy, this just doesn't hold up. Considering that "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," it seems unreasonable to assume that this information is truly being given consensually. Opting out of modern society should not be a requirement for Fourth Amendment protections.

The ruling, while considered a narrow one, is still far-reaching. AT&T, for example, received more than 70,000 subpoenas for data location in 2016 alone. And it has implications for emerging technology, like the Internet of Things; imagine your Philips Hue lights being used against you to prove whether you where home or not at certain times.

The Libertarian Party platform has regularly maintained that privacy rights under the Fourth Amendment should be protected and that unreasonable search and seizure should include records held by third parties, such as email, medical, and library records. If this ruling has shown us anything, it's that there are very real differences between the Libertarian party and the GOP.

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