Cell Phone Privacy: Is Location Data Protected by the Fourth Amendment?

by Aaron Delgado
October 15th, 2018

In a time of rapid technological advancement, courts must interpret the Constitution to accommodate modern technology. Since the Constitution was written over 200 years ago, there was no way the Drafters could have anticipated the constitutional questions posed by cell phones, computers, or the internet. One of the most important roles of modern courts is shaping the contours of the constitutional protection offered by a 200-year-old prohibition against “unreasonable searches and seizures” to include digital privacy rights.

Right to Privacy in the Digital World

On June 5, 2017, the Supreme Court took another step towards defining these protections by agreeing to hear Carpenter v. United States, a cell-phone privacy case. This fall, the Supreme Court will review the Sixth Circuit’s holding in Carpenter. The Court is answering the following question: Should the warrantless search and seizure of historical cell phone records, revealing the location and movements of a cell phone user over the course of 127 days, be prohibited by the Fourth Amendment?

This incredibly important issue affects every American with a cell phone and will set the stage for all proceeding privacy rights in the digital age.

The Court of Appeals for the Sixth Circuit answered the question in the negative, holding that the warrantless seizure of cell phone location data was not a Fourth Amendment violation.

Why is Cell Phone Location Data Not Private?

The Court’s ruling was largely motivated by the distinction between the content of communications and non-content information related to the communication. Traditionally, this distinction was the difference between the contents of the letter and the markings on the exterior of the envelope. A person generally has a reasonable expectation of privacy in the contents of the communication in the envelope, but not in information on the envelope itself. Similarly, a person may have a reasonable expectation of privacy in the contents of an email, but not in the non-content information such as sender and recipient email addresses or IP addresses. The Court determined that location data from cell phones falls under the latter category of unprotected non-content information.

The Future of Cell Phone Privacy

Although the Supreme Court has yet to address this issue, the seeming consensus among the Circuit Courts that have answered the question does not bode well for advocates of digital privacy rights. In addition to the Sixth Circuit’s finding that cell phone location data is not protected by the Fourth Amendment, the Eleventh, Fifth, and Third Circuits have also reached similar conclusions. Regardless of how the Supreme Court rules this fall, it will be making significant progress in shaping the constitutional landscape of this modern, digital age.

Protecting Your Fourth Amendment Rights

If you or a loved one has been subjected to a warrantless search by law enforcement and believe your Fourth Amendment rights may have been violated, speak with an experienced Florida attorney to discuss your situation. If you need assistance or further information, do not hesitate to contact our firm and find out how we can help you.

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