Douglas F. Brent

By Douglas F. Brent and Victoria Allen, Stoll Keenon Ogden PLLC

Editors Note: Victoria Allen is a 2017 Summer Associate with SKO.

The digital age has ushered in a multitude of location mechanisms on a communication device. Anyone who has paid roaming fees knows their phone connects to more networks than just those designated by their wireless provider.

Cellphones work by establishing a connection with cell towers. Each tower projects unique directional signals, so a cellphone picking up a signal from the north has distinct CSLI, or cell site location information, from a signal broadcast from the same towers southern sector. As they manage their networks, carriers record these connections.

With thousands of new microsites with smaller coverage areas, CSLI rivals GPS as a way to nearly pinpoint a devices location.

CSLI and law enforcement

In thousands of cases each year, law enforcement agencies obtain the CSLI associated with suspects phones under the Stored Communications Act, instead of securing a search warrant based on probable cause. This tower dump can reconstruct a suspects location and movements over time, and is effective in crime solving.

Nearly all federal courts have agreed that getting a tower dump from cellular providers does not require a warrant. As recently as 2015, the U.S. Supreme Court declined to review any of those decisions.

But on June 5, the Court granted a defendants request to review his conviction upheld last year by the Sixth Circuit Court of Appeals in USA v. Timothy Carpenter.

The Court will consider whether the warrantless seizure and search of cellphone records revealing Carpenters location and movements over 127 days violated his Constitutional rights, specifically Fourth Amendment protection from unreasonable searches and seizures.

Carpenter was nabbed by the FBI in a string of armed robberies at Radio Shacks and T-Mobile stores around southeastern Michigan and northwestern Ohio. After receiving a judges order to obtain records from wireless carriers, the FBI determined that Carpenter had been less than two miles from each store when the robberies took place.

A Michigan jury convicted Carpenter and co-defendants, and a district judge sentenced him to multiple 25-year terms. The sentence was affirmed last year and Carpenter filed for Supreme Court review, even though two terms ago the Court declined to review a nearly identical decision from the Eleventh Circuit.

Why answer an unasked question?

We have written previously about why courts have generally held a warrant is not required to access cell site location information. The privacy protection provided by the Fourth Amendment guards individuals against unreasonable searches and seizures by law enforcement. Reasonableness is grounded in whether the person asserting the protection has an actual expectation of privacy that society will recognize.

But the Supreme Court has held that parties lack an expectation of privacy in business records created by third parties, like a telephone company that records the numbers dialed to initiate a call. Courts dont treat the review of most third-party transactional records as a search at all.

The resulting third-party doctrine, though developed in a different technology era, remains in use today. Regarding cellphone network data for geo-location, the records of wireless service providers have not triggered the same level of privacy protection as more direct methods of surveillance, like a hidden tracking device.

To fill the gap between Fourth Amendment protection and no protection at all, Congress created the Stored Communications Act (SCA), which requires that the government present reasonable grounds but not probable cause to obtain records like CSLI. Whether such information is also protected by the Fourth Amendment has become a more difficult question as transactional records become more numerous and more capable of revealing seemingly private information.

Some judges have been uncomfortable applying the third-party doctrine to pervasive collections, like thousands of locations recorded over months at a time. Judges have also questioned whether the doctrine applies to data not voluntarily conveyed by cellphone users. In the earliest cases involving phone networks, the information voluntarily conveyed was the number dialed by a suspect. In contrast, cellphone users dont so directly influence which cell tower their phone connects to.

The Supreme Courts decision to review Carpenters claims related to CSLI validates concern that the Fourth Amendment is being browbeaten into retreat by the swell of information that is conveyed to third parties. The Courts decision to hear Carpenter is an indication that the Supreme Court is ready to reconsider that decades old third-party doctrine in light of todays technology.

And it may be time.

Read more:

Your vanishing location privacy: Why the Supreme Court is giving wireless networks a look - Insider Louisville