A case before the Supreme Court today could have big implications for law enforcement – and for anyone who owns a cellphone.
At issue in Carpenter v. United States is whether police can go directly to cellular service providers and request the historical phone records of individuals without obtaining a warrant, as required by the Fourth Amendment.
“I think this is going to be a big one to watch, because in recent years the Court has been grappling with the scope of Fourth Amendment protections when it comes to emerging technology,” says Elizabeth Slattery, legal fellow at The Heritage Foundation. “A few terms ago, [the Supreme Court] ruled on a case dealing with whether police could attach a GPS tracking device to a criminal suspect’s car – and they ended up ruling against the police in that case.”
A few terms later, she continues, the high court heard a case dealing with whether police could then go into an arrested suspect’s cellphone and look at his phone records.
“Again, the Supreme Court ruled against the police in that case,” notes Slattery.
In the Carpenter case, a criminal defendant is challenging his conviction for six robberies – crimes that were proven in part by the government and police using his cellphone location records.
“They used these to prove where he was and that he was at the scene of the crime at the time that it occurred,” explains Slattery. “I think it could have big implications for how law enforcement operates … and I think anyone who owns a cellphone should care about the outcome of this case.”
In an article addressing Carpenter, Slattery notes that some courts have applied the so-called “third-party doctrine” in similar cases – but that some have not. That principle holds that information voluntarily shared with someone else – a person’s bank or phone service provider, for example – isn’t protected by the Fourth Amendment; that in sharing such information, an individual assumes the risk that it will be shared with others.
Jennifer Lynch, a senior staff attorney for the Electronic Frontier Foundation, says the main challenge for the Supreme Court in Carpenter will be to figure out how to reset the parameters of the third-party doctrine for the digital age – or do away with it altogether.
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