On June 5, 2017, the United States Supreme Court granted a petition for a writ of certiorari in Carpenter v. United States, from the Sixth Circuit Court of Appeals. The Supreme Court will have to address whether or not the Fourth Amendment protects government access to historical cellular phonesite records. In Carpenter, the government seized several months’ worth of cell phone location records from robbery suspects without obtaining a probable cause warrant. For one suspect, Timothy Carpenter, the records revealed 12,898 separate points of location data. For another suspect, Timothy Sanders, the records revealed 23,034 separate points of location data.

FBI agent Christopher Hess offered expert testimony explaining that the cell phone data acquired under the Stored Communications Act (“SCA”)(18 U.S.C. Chapter 121 §§ 2701–2712) indicated that Carpenter and Sanders’ phones were within one-half mile to two miles of the location of each of the robberies around the time the event occurred. Carpenter and Sanders sought to suppress this evidence under the Fourth Amendment, but the district court denied their motion.

The SCA permits the government to obtain records where “specific and articulable facts show that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation”—a much lower bar than the probable cause needed to obtain a run-of-the-mill search warrant.

A divided panel of the Sixth Circuit stated that, “although the content of personal communications is private, the information necessary to get those communications from point A to point B is not.” For example, while individuals may enjoy a reasonable expectation of privacy regarding the content of their telephone calls, they do not have the same expectation for the numbers dialed. The court concluded that, “[t]oday, the same distinction applies to internet communications,” i.e., while the Fourth Amendment protects the contents of an email, it does not protect metadata. The Sixth Circuit joins the Fourth, Fifth, and Eleventh Circuits in holding that there is no reasonable expectation of privacy in historical cell site location information under the Fourth Amendment, and therefore no warrant is required.

Numerous lower court judges encountering the issue have followed the Supreme Court’s third-party-doctrine cases, which hold that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties. However, this line of thinking has been deemed antiquated by some in light of the vast amounts of data that are collected on a daily basis. Justice Sotomayor noted in United States v. Jones, that it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties and that this approach is ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. 132 S. Ct. 945, 957 (2012).

In recognition of this changing tide, and relevant to the issue presented in Carpenter, some courts have concluded that individuals have a reasonable expectation of privacy in their location. For example, in United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), aff’d on other grounds sub nom. Jones, 132 S. Ct. 945, the D.C. Circuit held that using a GPS device to surreptitiously track a car over the course of 28 days violated reasonable expectations of privacy and was therefore a Fourth Amendment search. Id. at 563. The court explained that “[p]rolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than any individual trip viewed in isolation.” Id. at 562. Therefore, people have a reasonable expectation of privacy in the intimate and private information.

Collecting and analyzing cell phone records can, and often does, reveal extraordinarily sensitive details about a person’s life. This case will have an enormous impact on the Fourth Amendment in connection with data collected and an individual’s expectation of privacy in the ever progressing digital age.