Police must now get a warrant before accessing historical cell phone records that provide a full record of the user’s past movements, according to a Supreme Court ruling last week, in a 5-4 decision authored by Chief Justice Roberts. This warrant requirement will be true, even though the records are created and owned by the cell provider and not the user.
Important, but limited
This decision is important but limited. Previously, the law had been that any personal records held by a third party (such as bank records) could be accessed by the police by a simple subpoena.
The rationale for this is that people have no expectation of privacy in records voluntarily conveyed to others. This is known as the “third party doctrine.” But, when it comes to historical cell site location data, the courts will now treat this as an “entirely different species of business record—something that implicates basic Fourth Amendment concerns about arbitrary government power much more directly than corporate tax or payroll ledgers.”
The new exception to the third-party doctrine will only apply to “the rare case where the suspect has a legitimate privacy interest in records held by a third party.” In other words, not every file stored on Dropbox or other cloud service, for example, will be protected.
For example, people still have no legitimate expectation of privacy in images of suspected child pornography. Furthermore, the Court did not rule that other forms of electronic data collection would require a warrant, such as real-time cell tower location tracking, video surveillance, or “other business records that might incidentally reveal location information.”
However, when it comes to historical location information that is “detailed, encyclopedic, and effortlessly compiled,” the Court ruled that “the Government’s obligation is a familiar one—get a warrant.”
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