In one of the most important Fourth Amendment battles of the digital age, the Supreme Court is preparing to tackle a case involving law enforcement accessing cellphone records without a warrant.
On Wednesday the US Supreme Court is scheduled to address the case of Carpenter v. United States to determine whether or not law enforcement should be required to obtain a warrant before accessing the cellphone records of an individual. The case deals with a set of armed robberies that took place between December 2010 and March 2011. Several men worked together to rob RadioShack and T-Mobile stores in the Michigan and Ohio areas, stealing cell phones and holding store employees and customers hostage in the process.
A couple of the men were arrested and quickly confessed afterwards. However, one man remained at large. With one of the suspect’s phones in their possession, the FBI gained access to”transactional records” from various wireless carriers for 16 different phone numbers contained within the phone. These records contained all the location info and call records made to and from the phone. Using the “cell-site records” pulled off the phone, the FBI was able to locate and arrest the final suspect, Timothy Carpenter. He was charged and convicted by a jury of aiding and abetting robbery that affected interstate commerce, and aiding and abetting the use or carriage of a firearm during a federal crime of violence. Carpenter now faces life in prison for his crimes.
The FBI gained access to the cell-site records using provision set forth by the Stored Communications Act, which was passed in 1986 to deal with the protection of information stored digitally. The Act allows the government to force a third-party service provider to provide customer information under the so-called “third-party doctrine,” which states that individuals lose their expectation to privacy when they voluntarily provide private info to email, Internet, and cell phone providers. This lower barrier for accessing personal information allowed the FBI to gain access to the suspect’s cell phone data with a judge’s approval, but without a warrant based on probable cause. This is because the SCA only requires that there are “reasonable grounds” to suspect that the contents of a phone or other electronic communication device will be relevant to an ongoing criminal investigation.
Carpenter has appealed the decision stating that the FBI failed to acquire a warrant before accessing the cell-site records. Earlier this summer the Supreme Court decided they would rule on the matter. The Supreme Court blog states that the issue at hand is, “Whether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.”
The Fourth Amendment to the U.S. Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” This means the government should only violate these rights upon issuance of a warrant. The government is expected to argue that the SCA supports its decision to obtain the service provider’s location information without a warrant because the information does not reveal the actual contents of communications on the cell phone. In response, Carpenter’s attorneys will likely argue for Fourth Amendment protections and use the case of Riley v. California, which found that warrantless search and seizure of digital contents of cell phones during an arrest in unconstitutional because cell phones hold vast amounts of personal information. Carpenter’s team will attempt to convince the judges that cell phones are completely intertwined with the average American’s life and should be protected.
Carpenter has received support from civil liberties group like the American Civil Liberties Union, as well as the Reporters Committee for Freedom of the Press and 19 other media organizations that have called on the Supreme Court to overturn the guilty verdict and require the government to acquire warrants to access cellphone location data.
The ACLU is arguing that not only is the issue about Fourth Amendment protections for the average American, but that Carpenter v. United States will have important implications on whether or not journalists are protected from revealing their sources. For today’s journalists, cellphones are mobile newsrooms that go where a reporter goes. They’re used to contact sources, record interviews, write notes and articles, take photos and videos, share work on social media, follow breaking news, and more.
“If the court accepts the government’s argument in Carpenter, this would make it easier for the government to obtain cellphone location records and track where reporters have traveled,” the ACLU writes. “This, in turn, can reveal reporters’ newsgathering processes and sources. For example, a journalist’s visits to a government building could indicate that she is working on a piece about a specific agency. This could put the agency on alert and make it more difficult to gather necessary facts. For reporters, leaving a cellphone behind to avoid this scenario is not an option — doing so would hinder their ability to effectively report a story.”
If you care about freedom and privacy you should keep your eyes and ears on the case of Carpenter v. United States. Whatever the court rules will shape the future of how law enforcement handle digital communications as move further into an increasingly digital age where privacy is almost non-existent.
Derrick Broze is an investigative journalist and liberty activist. He is the Lead Investigative Reporter forActivistPost.com and the founder of the TheConsciousResistance.com. Follow him on Twitter. Derrick is the author of three books: The Conscious Resistance: Reflections on Anarchy and Spirituality andFinding Freedom in an Age of Confusion, Vol. 1 and Finding Freedom in an Age of Confusion, Vol. 2
Derrick is available for interviews. Please contact Derrick@activistpost.com
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