Cell Phone Privacy Case Decided by Justice Robert’s Swing Vote

On Behalf of | Aug 17, 2018 | Firm News, Telecommunications Law

Privacy in the modern digital age seems to be an oxymoron. Every time you access an app on your smartphone, the phone demands your location. It’s as though there is always a way for somebody to track the location of private citizens, including law enforcement. However, the Supreme Court just recently ruled that law enforcement will have to obtain a warrant from a judge showing “probable cause” in order to see someone’s cell phone history location. The narrow, 5-to-4, ruling was a win for advocates of privacy protection in the modern technological era.

Chief Justice Roberts wrote the majority opinion, siding with the “liberal-leaning” justices. The case, Carpenter v. United States, arose after Timothy Carpenter was pronounced guilty to a multitude of armed robberies in which prosecutors used his cell phone location records to pinpoint Carpenter’s location at the scenes of the crimes. Justice Roberts held that “a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party.”

The Supreme Court must tackle a variety of technological challenges in the digital era. These challenges put the Court in a position to tackle these complex questions that are becoming more prevalent as the modern society becomes more and more technologically oriented. The Court, noting its dilemma, ruled that obtaining cell phone location records without a warrant was in violation of the 4th amendment of the Constitution.


Each of the dissenting justices wrote a dissenting opinion. Justice Kennedy, in one of his final cases, wrote a fiery dissent pointing out that this case will hamper law enforcement in its pursuit of “apprehend[ing] some of the nation’s most dangerous criminals.” Justice Alito added in his own dissenting opinion that, “this decision will guarantee a blizzard of litigation while threatening valuable investigative practices upon which law enforcement has rightfully come to rely.”

Under the old law and the Stored Communication Act, prosecutors were required to show specific and articulable facts that there are reasonable grounds to believe “that the records being sought are material to an ongoing criminal investigation.” After the Carpenter v. United States ruling, the standard is a much higher bar for those seeking to get cell phone location records. A showing of “probable cause” (a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person’s belief that certain facts are probably true) is now needed to obtain a warrant for cell phone records articulated in Carpenter.

In his conclusion to the Supreme Court’s opinion, Chief Justice Roberts opined that, “when the government tracks the location of a cell phone, it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.”