Two conspirators, Timothy Carpenter and Timothy Sanders, were charged with aiding and abetting a robbery affecting interstate commerce and the use or carriage of a firearm. At trial, the FBI explained that the CSLI they had acquired had placed the two men’s phone within a half-mile to two miles of each robbery.
The prosecutor had gotten a court order without demonstrating probable cause to obtain this CSLI data. The prosecutor used 12,898 location points over 127 days to show that Carpenter was near the crime scene. Because the court order was not a warrant based on probable cause, Carpenter and Sanders sought to suppress the CSLI evidence under the Fourth Amendment, but the district court denied the motion. Both men were convicted, and both appealed.
Justice John J. Roberts A.
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.
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.
We decline to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cell phone 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.
A person does not surrender all Fourth Amendment protection by venturing into the public sphere. To the contrary, “what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” … A majority of this Court has already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements. … Prior to the digital age, law enforcement might have pursued a suspect for a brief stretch but doing so “for any extended period of time was difficult and costly and therefore rarely undertaken.” … For that reason, “society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.”
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.
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. … Unlike with the GPS device in Jones, police need not even know in advance whether they want to follow a particular individual, or when.
Accordingly, when the Government accessed CSLI from the wireless carriers, it invaded Carpenter’s reasonable expectation of privacy in the whole of his physical movements.
B.
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’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. … 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.
The third-party doctrine partly stems from the notion that an individual has a reduced expectation of privacy in information knowingly shared with another.
But the fact of “diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely.” Instead, [the court] considered “the nature of the particular documents sought” to determine whether “there is a legitimate ‘expectation of privacy’ concerning their contents … In mechanically applying the third-party doctrine to this case, the Government fails to appreciate that there are no comparable limitations on the revealing nature of CSLI.
[This case] is about a detailed chronicle of a person’s physical presence compiled every day, every moment, over several years. Such a chronicle implicates privacy concerns far beyond those considered in Smith and Miller.
Neither does the second rationale underlying the third-party doctrine—voluntary exposure—hold up when it comes to CSLI. 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. Virtually any activity on the phone generates CSLI, including incoming calls, texts, or e-mails and countless other data connections that a phone automatically makes when checking for news, weather, or social media updates. Apart from disconnecting the phone from the network, there is no way to avoid leaving behind a trail of location data. As a result, in no meaningful sense does the user voluntarily “assume[ ]
the risk” of turning over a comprehensive dossier of his physical movements.
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.
Reversed, in favor of Defendants.
CRITICAL THINKING:
What analogies did the government try to use in this case? Why were they unsuccessful? Do you think the Court was correct to reject these analogies?
ETHICAL REASONING:
What ethical norm is being furthered by this decision, and what ethical norm is being sacrificed?