Cell phone records and the warrant requirement

Next month, the United States Supreme Court is set to hear oral arguments in perhaps the most important Fourth Amendment case of the past twenty years. This is the court’s opportunity to protect the privacy of citizens’ cell phone records while still making the allowances needed to keep the public safe. 

In Carpenter v. United States, the Court will decide whether the law of search and seizure is violated when the government issues a subpoena for cell phone location records under the Stored Communications Act. This law allows phone records to be subpoenaed on the basis of reasonable grounds, a standard of proof considerably lower than that generally needed for a warrant.

Probable cause, the more usual standard, requires a measure of particularity in suspicion of the person involved and the crime committed. Ignoring this specificity when requesting cell phone records, except in emergency circumstances, should constitute an illegal search. Phone data can be used to piece together, both retroactively and in real time, the location and movement of a citizen. Using records in this way is the essence of what it means to search — to see and assemble together that which cannot be viewed or determined by normal observation — and to say otherwise is offensive to common sense. This is the sort of government action where a warrant supported by probable cause should normally be demanded.

But, when previously considering this case, the 6th U.S. Circuit Court of Appeals found that citizens can have no reasonable expectation of privacy in phone records under the third party doctrine, which holds that when private information is given to a business, the company owns the record. Under this logic, because a caller exposes information about calls they make and receive to their cell phone company, their legal right to keep those records private is substantially diminished. For these reasons, the 6th Circuit concluded that in this case there was no search.

The position articulated by the 6th Circuit is flawed; there's a problem of false equivalency. Information taken by a service provider is not the same as information that is knowingly and willfully exposed: a call log is inherently different from a personal Facebook post. Yet the law treats the expectation of privacy in these cases identically. This is even more troubling when we consider that what may be done with a cell phone, both in terms of storing and retrieving personal data, is unprecedented.

It is time to reexamine the third party doctrine. The Supreme Court should take Carpenter v. United States as a chance to narrow this doctrine's reach and declare the relevant section of the Stored Communications Act unconstitutional.

Yet this should be balanced with a firm understanding that there are circumstances where public safety will outweigh individual rights. Courts can keep us safe while at the same time preserving precious civil rights and liberties. The pathway to this balance lies in an outcome in Carpenter v. United States that imposes a general rule that requires a probable cause warrant for the production of cell phone records, tempered by an allowance for emergency circumstances.

Disclosure: The University of Houston has been a financial supporter of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.

Kevin Buckler

Associate dean, College of Public Service, University of Houston

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