In late November, the Supreme Court will tackle a crucial question relating to privacy rights in the digital age: Does the Fourth Amendment allow police, without a warrant, to track where you’ve been for the past four months by looking at your cellphone data?
In Carpenter v. United States, which will be argued on November 29, cell site location information placed a robbery suspect, Timothy Carpenter, near the scenes of several crimes, and at about the same time as those crimes happened. The information was used as evidence leading to Carpenter’s conviction on robbery charges.
Carpenter argues that modern cellphone records are fundamentally different than traditional phone records cited in a 1979 Supreme Court decision, Smith v. Maryland, which permitted searches of phone records without warrants under the “third-party doctrine.” That doctrine says that any information voluntarily shared with someone or something else is not protected by the Fourth Amendment. The Sixth Circuit upheld Carpenter’s convictions and, applying the third-party doctrine, ruled that the government did not need a warrant to get the phone data because Carpenter could not have expected that cellphone records maintained by his service provider would be kept private.
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Alex Abdo is a senior staff attorney at the Knight First Amendment Institute. In 2015, he argued the closely watched appeal that resulted in the Second Circuit invalidating the NSA’s call-records program.
Orin Kerr is Fred C. Stevenson Research Professor of Law at George Washington Law School and a nationally recognized scholar of criminal procedure and computer crime law. Kerr has filed an amicus brief in the case Carpenter v. United States on behalf of himself.
Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.” He is also a professor at The George Washington University Law School, and a contributing editor for The Atlantic.
Related Decisions and Briefs
- Olmstead v. United States (1928)
- Smith v. Maryland (1979)
- United States v. Jones (2012)
- Riley v. California (2014)
- Amicus Brief on Behalf of Technology Experts in Carpenter v. United States, 16-402
- Amicus Brief of Professor Orin S. Kerr in Carpenter v. United States, 16-402
- List of Other Briefs on SCOTUSBlog
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