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Supreme Court Requires Warrant to Search Cellphone Location Records

Thomson Reuters Westlaw Journal

The U.S. Supreme Court has held the FBI violated a cellphone user's constitutional rights when it obtained four months' worth of location information from his cellular providers via a subpoena rather than a warrant supported by probable cause.

Carpenter v. United States, No. 16-402, 2018 WL 3073916 (U.S. June 22, 2018).

Writing for a 5-4 majority, Chief Justice John Roberts said the FBI was required to obtain a warrant based on probable cause because its acquisition of historical cellphone location records constituted a search for purposes of the Fourth Amendment.

The FBI's subpoena under the Stored Communications Act, 18 U.S.C.A. § 2703, did not satisfy that requirement because the agency needed to demonstrate only "reasonable grounds" for believing the records were "relevant and material to an ongoing investigation," the majority said.

Additionally, the majority held that the third-party doctrine, which allows law enforcement to obtain certain business records without a warrant, does not apply to cellphone location records because they contain particularly revealing and sensitive information about a person's movements over time.

"The decision is a major step forward in digital privacy and in shaping a new Fourth Amendment jurisprudence that recognizes the reality that we all carry devices around in our pockets that are capable of 'near perfect surveillance,'" according to attorney Ben Berkowitz of Keker, Van Nest & Peters, who was not involved in the case.

"We should expect to see further Fourth Amendment challenges to law enforcement efforts to collect personal and sensitive information transmitted by the public — often unknowingly — to third parties like phone and internet companies without a warrant," he added.

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