In a landmark 5-4 decision, the United States Supreme Court held that the government conducts a search under the Fourth Amendment and therefore, absent exigent circumstances, needs a warrant supported by probable cause when obtaining cell-site location information (i.e., records of the cell towers to which mobile devices connect). The majority reached that conclusion based on the determination that such location records are subject to a reasonable expectation of privacy that continues to apply even though the location records are disclosed to the cell phone user’s wireless carrier, a third party.
On Monday, the Supreme Court granted certiorari in Carpenter v. United States, a Sixth Circuit case that provides the Court with the opportunity to clarify whether individuals have a reasonable expectation of privacy in location data shared with electronic communications service providers. Specifically, the Court will consider whether the Fourth Amendment requires law enforcement to obtain a warrant for the search and seizure of wireless carriers’ cell phone data that reveals the cell phone user’s location over the course of several months; or whether such location information falls within the long-recognized “third-party doctrine” exception to Fourth Amendment protections. A definitive Supreme Court holding on these issues could clarify presently muddled case law surrounding cell-site tracking data and perhaps inform judicial interpretations of privacy torts and other issues related to the collection, use, and sharing of location data.
On March 8th, the United States Court of Appeals for the Ninth Circuit, sitting en banc, held in United States v. Cotterman that the Fourth Amendment requires border agents to have at least a reasonable suspicion of criminal activity before they may conduct a forensic examination of a person’s electronic device. Hogan Lovells lawyers briefed and Hogan Lovells partner Chris Handman argued as amicus on behalf of the Constitution Project, a bipartisan, not-for-profit organization that promotes consensus-based solutions to the significant constitutional questions facing Americans in the 21st century.
Sometimes Fourth Amendment cases (which by definition arise in a governmental context) have implications for consumer privacy law since the “reasonable expectation of privacy” analysis can be employed in both areas. Yesterday’s U.S. Supreme Court 9-0 ruling in United States v. Jones that the warrantless attachment of a GPS device to a car for monitoring purposes violated the Fourth Amendment offers little guidance in the consumer privacy context because the opinion for the Court did not rely on an “expectation of privacy” analysis.
The Supreme Court on June 27 granted certiorari in a geolocation tracking case that could have implications for companies that incorporate location-tracking features into their products or that monitor the locations of their employees for asset-tracking or business-productivity purposes.