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ACLU Asks SCOTUS: Can Police Get Location Data Without a Warrant?

By George Khoury, Esq. | Last updated on

The Sixth Circuit case, Carpenter v. United States, which upheld law enforcement's ability to obtain historical cell phone location data without a warrant, is heading for the U.S. Supreme Court. At issue is whether obtaining location data from service providers without obtaining a warrant first violates the Fourth Amendment.

Currently, courts have been finding that a warrant is not needed on the theory that location data, and other metadata, are not private, but rather functional. The analogy to postal mail is unconvincingly drawn, explaining that like the addresses, and stamp, on an envelope, a person's location data is something that helps the service provider provide their service, and thus is the functional equivalent to a return address and not private.

D-Order Constitutionality

The petitioner's brief was recently filed by the ACLU, which has taken on Carpenter's defense and calls into question the constitutionality of the use of "d-orders" which permit law enforcement to obtain location data from service providers without providing an affidavit of probable cause. The ACLU warns that this legal loophole could be exploited by law enforcement to monitor anyone's whereabouts, "minute-by-minute."

Details of the Case

In convicting Carpenter on robbery charges, the prosecution relied on data obtained from the warrantless collection of Carpenter's cell phone location data. While the Supreme Court has ruled that a search of a cell phone after an arrest requires a warrant, it has not ruled on this specific issue of the meta-data.

Whether or not a reversal on this piece of evidence would overturn his conviction is an entirely different question, but with how rapidly technology advances, any guidance from the High Court on these issues is welcome.

The specific question presented to the Court:

"Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment."

The case is expected to be argued in the fall term.

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