Is A Warrant Required To Access Location Information?

Is a warrant required for law enforcement to access a suspect’s location information generated by the suspect’s cell phone?  Would obtaining such data violate a person’s Fourth Amendment rights?  In this blog, we will be discussing whether a warrant is required for law enforcement to access a user’s location information from cell phone service providers.  As geolocation information is almost continually updated when users interact with apps and send and receive messages, such location information is almost always available.  But also, as constantly available are Fourth Amendment rights, namely the right to be free from unreasonable searches and seizures.

In Carpenter v. United States, the Supreme Court analyzed this Fourth Amendment issue.  In order to obtain a search warrant, police typically must submit a warrant application to an independent judge or magistrate.  In the application, the police must outline facts leading the judicial officer to believe there is probable cause that the suspect is engaging in criminal behavior.  This showing of likely criminal behavior is known as “probable cause” and is required for police to conduct a search of a place or person.

There is an applicable federal law.  Section 2703(d) of the Stored Communications Act, which protects privacy information and the stored content of electronics, allows an exemption to the typical warrant required for a search.  Orders made under 2703(d) can compel the production of certain stored communications or non-content information if “specific and articulable facts show that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” This is closer to what is known as the “reasonable suspicion” standard than “probable cause.”  Reasonable suspicion comes into play when police pull over a vehicle, for example, or conduct a stop and frisk of a suspicious person who they believe may be concealing a weapon.  Reasonable suspicion is a much lower bar to meet than probable cause.

In Carpenter v. United States, the key issue was whether Cell Site Location Information (CSLI), which is generated whenever a user’s phone interacts with a cell tower, can be accessed without obtaining a warrant.  CSLI records are kept by cell phone companies for up to 5 years, and can be used to show the regular movement patterns of a particular phone over time. In Carpenter, a group of suspects were arrested for a number of armed robberies.  One of the suspects confessed and cooperated, and gave the FBI the cell phone numbers of the other criminals.  The FBI obtained 2703(d) orders for the production of records and location information for 16 phone numbers.  These phone numbers included Carpenter’s.

Distinguishing data obtained from cell site location information from the call records of the phone, the Supreme Court noted that “much like GPS tracking of a vehicle [which, if prolonged, violates a person’s privacy rights], cell phone location is detailed, encyclopedic, and effortlessly compiled.”  The Court held that “an individual maintains a legitimate expectation of privacy in the record of their physical movements as captured through CSLI.  The location information obtained from Carpenter’s wireless carriers was the product of a search.”

A warrant is therefore required to access CSLI since the Court held that such location information is the product of a search. The Court stated: “An order issued under Section 2703(d) is not a permissible mechanism for accessing historical cell site records.” While the obtaining of location information in this case was not permissible, the Court noted that there may be an exception to this holding: “While police must get a warrant when collecting CSLI to assist in the mine-run criminal investigation, the rule we set forth does not limit their ability to respond to an ongoing emergency.”  This makes room for police to access location information when exigent circumstances exist, such as a kidnapping or other emergency.

At our law firm, we assist clients with legal issues related to data privacy, invasion of privacy, technology, and internet law.  Please contact us to set up an initial consultation.