Victory! Supreme Court Says Fourth Amendment Applies to Cell Phone Tracking

Victory! Supreme Court Says Fourth Amendment Applies to Cell Phone Tracking by Activist Post

The Supreme Court handed down a landmark opinion today in Carpenter v. United States, ruling 5-4 that the Fourth Amendment protects cell phone location information. In an opinion by Justice Roberts, the Court 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 a result, police must now get a warrant before obtaining this data.

This is a major victory. Cell phones are essential to modern life, but the way that cell phones operate—by constantly connecting to cell towers to exchange data—makes it possible for cell providers to collect information on everywhere that each phone—and by extension, each phone’s owner—has been for years in the past. 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.”

For years, the government has argued that the sensitive nature of this data doesn’t matter; the mere fact that it’s collected by phone companies makes it automatically devoid of constitutional protection.

This argument is based on an outdated legal principle called the “Third Party Doctrine,” which was developed by the Supreme Court in two main cases from the 1970s involving records of phone calls and bank transactions. Courts around the country had long been deeply divided on whether the Third Party Doctrine should apply to cell phone location information or whether the invasiveness of the tracking it enables should require a more privacy-protective rule.

EFF has been involved in almost all of the significant past cases, and in Carpenter, EFF filed briefs both encouraging the court to take the case and urging it to reject the Third Party Doctrine. We noted that cell phone usage has exploded in the last 30 years, and with it, the technologies to locate users have gotten and continue to get ever more precise.

Thankfully, in Carpenter, 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.”

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