Landmark Carpenter Decision Changes the Game

In the landmark Carpenter v. United States case, the U.S. Supreme Court held that seizure of 7 days or more of historical CSLI is a search requiring a probable cause warrant under the Fourth Amendment and that the Third Party Doctrine does not defeat an individual's reasonable expectation of privacy in their locational history.

In an opinion by Chief Justice Roberts, SCOTUS recognized that location information, collected by cell providers like Sprint, AT&T, and Verizon, creates a “detailed chronicle of a person’s physical presence compiled every day, every moment over years.” As the Court noted, not only does access to this kind of information allow the government to achieve “near perfect surveillance, as if it had attached an ankle monitor to the phone’s user,” but, because phone companies collect it for every device, the “police need not even know in advance whether they want to follow a particular individual, or when.”

Justice Roberts rejected the government’s reliance on the Third Party Doctrine, writing that there is a “world of difference between the limited types of personal information addressed in” prior Supreme Court cases and “the exhaustive chronicle of location information casually collected by wireless carriers today.” The Court also explained that cell phone location information “is not truly ‘shared’ as one normally understands the term,” particularly because a phone “logs a cell-site record by dint of its operation, without any affirmative act on the part of the user beyond powering up.”

This is a major victory worth celebrating in your next CSLI motion to suppress!

Checklist for Challenging a CSLI Search

  1. File a discovery motion requesting the raw data and methodology of seizure.
  2. Where law enforcement fails to obtain a probable cause search warrant for CSLI, file a motion to suppress pursuant to US. v. Carpenter, 585 U.S. ____, 138 S. Ct. 2206 (2018).
  3. Where law enforcement does obtain a warrant for CSLI, refer to our strategies for How to Challenge a Digital Device Search.
  4. Challenge the foundation and authenticity of the proffered CSLI record(s).
  5. Rely on more privacy protective state laws.

Many states have passed statutes that are more privacy protective than federal laws and require law enforcement agencies to get a warrant before they can access either or both historical or prospective CSLI. California, Colorado, Maine, Minnesota, Montana, New Hampshire, and Utah have passed robust location privacy legislation. Other states have less robust locational privacy protections, like Illinois, Indiana, and Maryland, which only protect real-time location information, or Iowa which only protects GPS location data. The standards for obtaining these types of warrants differs from state to state, along with what kind of CSLI is being sought.

For example, California’s CalECPA not only requires law enforcement to obtain a search warrant (CA Penal Code §§ 1546.1) before obtaining CSLI, but also provides for a notice requirement (CA Penal Code section §§ 1546.2) and a statutory suppression remedy (CA Penal Code §§ 638.55, 1546.4) for violation of the state’s warrant requirement. You can learn more about CalECPA by going through this Prezi presentation. And for a peek at what California police are being told about CalECPA, take look at this CA Peace Officers’ Association Fact Sheet on CalECPA.

The Florida and New Jersey State Supreme Courts require a warrant for real-time location information. A more comprehensive geo-location privacy protection bill was proposed in Illinois, but was vetoed by the Governor in September of 2017. Refer to ACLU’s chart (last updated 10/13/15) for the status of state legislation on locational privacy across the country.

Public Policy Arguments

This is the basic outline for our policy arguments as to why the Third Party Doctrine (TPD) should not be applied to exempt CSLI (historical or prospective) from the Fourth Amendment’s warrant requirement taken from our Carpenter amicus brief:

The Third-Party Doctrine Is “Ill-Suited to the Digital Age” and Should Not Apply to CSLI.

Cell Phone Users Do Not “Voluntarily Convey” CSLI to Service Providers

First, it is a Fourth Amendment fiction that individuals “voluntarily” convey CSLI as one would dial a phone number. Users do not intentionally create CSLI and have no real choice in the matter. In fact, it is “unlikely that cell phone customers are [even] aware that their cell phone providers collect and store historical location information.” In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 317 (3d Cir. 2010); see also United States v. Stimler, Nos. 15-4053, 15-4094, 15-4095, 2017 WL 3080866, at *5 (3d Cir. July 7, 2017) (users do not voluntarily disclose CSLI to service providers); Augustine, 4 N.E.3d at 862 (same).

The Vast Majority of CSLI Is Generated Automatically

Second, cell phones create CSLI constantly and automatically, even when they are not in active use. Cell phones generate CSLI whenever they are on and searching for a signal—not just when users make calls, but also when the device is engaged in “passive activities such as automatic pinging, continuously running applications (‘apps’), and the receipt of calls and text messages.” 2015 N.D. Cal. Opinion, 119 F. Supp. 3d at 1024 (internal quotations and citation omitted).

There Is No Reasonable Alternative to Conveying CSLI to Third-Party Service Providers

Cell phones have become essential to daily life and are crucial vehicles for First Amendment activity; but the only way to avoid producing a comprehensive record of one’s movements and associations based on CSLI is to stop carrying a cell phone. Requiring Americans to forgo their cell phone use in exchange for privacy would present an untenable choice that is inconsistent with the history and purpose of the Fourth Amendment. Given that nearly all American adults own a cell phone, the position that cell phone users volunteer their location information simply by choosing to activate and use their phones and to carry the devices is untenable and unrealistic. See State v. Earls, 70 A.3d 630, 641 (N.J. 2013).

The Third-Party Doctrine Doesn't Defeat Americans'
Reasonable Expectation of Privacy in Their Location Data

The third-party doctrine is an exceedingly blunt instrument. In its strongest formulation, it divides the world in half: data is either completely secret or it is not private at all. But in practice, the privacy of communications metadata like CSLI is not an all-or-nothing endeavor. Some people may affirmatively choose to disclose their location information publicly, as when “geotagging” a Tweet. On the other hand, other people may restrict affirmative sharing of their location information to a more limited audience, like family or close friends. And at other times, users may not consciously opt to share their location with anyone at all.

But even the decision to “turn off” location sharing has no effect on the ability of service providers to know where a subscriber’s phone is, assuming it is working and connected to their network. If the third-party doctrine were to apply in this context, then the whereabouts of every cell phone user in America would never be private for Fourth Amendment purposes, no matter which other human beings—if any—a user decided to share that information with.

CSLI Implicates First Amendment Interests that Require Fourth Amendment Protection

Cell phones have become essential to the exercise of First Amendment freedoms. They are “so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification.” City of Ontario v. Quon, 560 U.S. 746, 760 (2010); Riley,134 S. Ct. at 2484. Cell phone location information implicates the kind of expressive and associational activities that the Fourth Amendment was designed to protect. By giving “papers” equal billing with “persons,” “houses,” and “effects,” the Framers indicated that courts have a special obligation to safeguard First Amendment information from unreasonable searches and seizures. See Roaden, 413 U.S. at 504 (the Court should examine Fourth Amendment reasonableness “in the light of the values of freedom of expression”); Stanford, 379 U.S. at 485; Zurcher, 436 U.S. at 564; see also Michael W. Price, Rethinking Privacy: Fourth Amendment “Papers” and the Third-Party Doctrine, 8 J. Nat’l Security L. & Pol’y, 270-71 (2015).

Good Faith Exception to the Exclusionary Rule

Unfortunately, many federal courts, including the Second, Fourth, Seventh, Ninth, and Eleventh Circuits, have relied on the good faith exception to deny motions to suppress in cases that preceded Carpenter. Nevertheless, at least one defendant in the U.S. District Court for the District of Connecticut (U.S. v. Blake, 2018 WL 3974716) has argued that warrantless CSLI searches should be found Constitutionally deficient pre-Carpenter because:

[A] reasonable officer should have seen the writing on the wall after the Supreme Court's decisions in Kyllo v. United States (holding that the use of a thermal imager to detect heat radiating from home was a search), United States v. Jones (holding that installation of a GPS device on a target's vehicle constituted a search), and Riley v. California (holding that police must generally obtain a warrant before searching the contents of a phone).

Defendants have had more success avoiding the good faith exception for warrantless CSLI searches in state courts. For example, a Florida appellate court applied the exclusionary rule to a 2001 warrantless CSLI search, found that the good faith exception did not apply, and ordered a new trial. And in Delaware, there is no good-faith exception under that state’s constitution, so a Delaware trial court applied Carpenter to suppress two-years of a defendant’s CSLI from 2016-2018 that investigators sought pre-Carpenter.

Thankfully, now that the US Supreme Court has determined that law enforcement must obtain a probable cause warrant to get access to CSLI from third-party providers, the government cannot rely on the good faith exception post-Carpenter to excuse warrantless searches of CSLI.