Carpenter vs U.S. Gives New Privacy Coverage for Locational Data

June 26, 2018  |  By Holly Dragoo

A closely watched Supreme Court case came to conclusion with another 5-4 ruling against law enforcement's use of cell-site location information (CSLI) without a warrant. Using CSLI data obtained from a mobile service provider, officials had been able to reconstruct a history of plaintiff Timothy Carpenter at or near a series of robberies, leading to his conviction. Historically speaking, law enforcement has been granted access to non-content data that is necessary for telecommunication since it had been considered, by definition, publicly available data (Smith vs. Maryland, 1979). However, the Supreme Court now states that such precedents from prior years did not take into account the “exhaustive chronicle of location information casually collected by wireless carriers today.”

IISP Analyst Holly Dragoo: "With the disclaimer to say I am not a lawyer, I can say that on the surface this departure (from the prior precedent of Smith vs. Maryland) will significantly hurt law enforcement efforts to pursue criminals in an ever-evolving digital landscape. Yes, they can always go get a warrant for the data – and in this case maybe they could have – but in many cases, analysis of CSLI is the basis that allows for warrants in the first place. It may be controversial, but fundamentally this is about the fourth amendment definition of “private property” and what a “search” is. Places where you have been are not “things” you can possess or safeguard, and therefore in my opinion do not have an expectation of privacy. Rapid periods of technological change will continue forever. Fear of big data should not be the basis of altering fourth amendment definitions."


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