The great majority of Americans now possess a cell phone. On these phones we store vast quantities of data. Browser history, call logs, text messages, pictures, music, contacts, notes, subscriptions, credit card and banking information and much more are stored on our phones. In a criminal case, the cellphone could be storing evidence and it has become a very useful tool for law enforcement. Text messages often reveal the details of a drug deal, credit card information is used to prove that items used in a crime were purchased by the defendant and call logs prove communications between co-conspirators. This is just a few examples of how cellphone data can be used in the prosecution of a criminal case.
Due to the personal nature of the data on the phone it is possible to take steps to protect that data through pass-codes, finger print locks and now even facial recognition has come to cellphones. Everyone has the ability to control and limit who sees what on their phone. In the absence of a search warrant, this includes law enforcement.
But what about the data that isn’t stored on the phone? Data that shows what cell towers a particular cellphone has been in contact with? Essentially everyone who carries a cellphone is a carrying a tracking device. Whenever a cellphone sends or receives data the service provider stores the information, including the time of the data transmission and the location of the cellphone in relation to the cell tower that it is communicating with. Using this data, law enforcement can track the past whereabouts of any suspect who was using a cellphone.
Timothy Carpenter happened to be one of those suspects. Last fall, The United States Supreme Court heard oral argument in the case of Carpenter v. United States. Carpenter was convicted by a federal jury in a series of robberies based in part on records provided by his cellular carrier that showed his movements over several months. Law enforcement did not seek a warrant before obtaining this information. In his appeal to the Supreme Court, Carpenter argued that this data is protected by the Fourth Amendment and cannot be seized without a warrant. The Court must decide if this type of data is subject to constitutional protection. Two previous cases may help guide this decision.
In 1979, the Supreme Court decided Smith v. Maryland, there the Court held that the government may not eavesdrop on a phone call, even one placed from a public phone booth, however, the Court also held that the phone numbers the person dialed on a phone could be obtained without a warrant. More recently, in 2014, the Supreme Court unanimously ruled in Riley v. California that the warrant-less search and seizure of digital contents of a cellphone during an arrest is unconstitutional. The Court recognized that the public’s adoption of cellphones, combined with their capacity to hold vast quantities of detailed personal information, makes them vastly different from the old analog phones. It was also recently ruled that law enforcement may not place a GPS tracker on a suspect’s vehicle without a warrant.
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