On November 29, 2017 the U.S. Supreme Court heard oral argument in United States v. Carpenter, an appeal from a Sixth Circuit decision that held the warrantless collection by law enforcement of historical cell-site location data did not violate the Fourth Amendment. The case has the potential to significantly change how the government collects, uses and tracks individuals’ cell phone location information.

In the district court, Mr. Carpenter challenged the constitutionality of law enforcement’s warrantless collection and search of his location data. The data was used at trial in an attempt to establish Mr. Carpenter’s location at the time of several robberies. Mr. Carpenter was subsequently convicted of a number of robberies.

On appeal and despite his Fourth Amendment challenge, the Sixth Circuit rejected Mr. Carpenter’s privacy argument. The court held that cell-site location information qualifies as routinely collected business records that can be obtained by law enforcement without the need for a warrant.

During oral argument, some of the Justices distinguished cell-site data location information from traditional surveillance. The former provides law enforcement a new and innovative tool to obtain information about an individual’s location long after an incident has occurred.

Interestingly, in United States v. Jones (2012), Justice Scalia wrote for a unanimous Court, holding that the unauthorized and warrantless placement of a GPS tracking device on a vehicle to track a suspect’s movement on public streets for twenty-four hours constituted a violation of the Fourth Amendment.

Oral argument in Carpenter is available here.

Richard B. Newman is an Internet marketing compliance and regulatory defense attorney at Hinch Newman LLP focusing on advertising and digital media matters. His practice includes conducting legal compliance reviews of advertising campaigns, representing clients in investigations and enforcement actions brought by the Federal Trade Commission and state Attorneys General, commercial litigation, advising clients on promotional marketing programs, and negotiating and drafting legal agreements.

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