Though the Supreme Court has long afforded Fourth Amendment protections to the content of a communication, routing information is treated different.
In the case at hand, police used wireless records to show two men, Timothy Carpenter and Timothy Sanders, each man used his cellphone within a half-mile to two miles of several robberies during the times the robberies occurred.
Convicted of nine armed robberies in violation of the Hobbs Act, Carpenter and Sanders argued that the government’s collection of their records under the Stored Communications Act constituted a warrantless search in violation of the Fourth Amendment.
The Sixth Circuit rejected the challenge, but the U.S. Supreme Court agreed Monday to weigh in. Carpenter’s case is the only one granted a writ of certiorari Monday, among a list of dozens of denied petitions.
Though the court did not issue any statement on the case, as is its custom, court records noted that this case is one of thousands each year in which the government seizes a private individual’s historical cellphone location data pursuant to a Stored Communications Act (SCA) disclosure order rather than by securing a warrant.
“Under the SCA, a disclosure order does not require a finding of probable cause,” the case record says. “Instead, the SCA authorizes the issuance of a disclosure order whenever the government ‘offers specific and articulable facts showing that there are reasonable grounds to believe’ that the records sought ‘are relevant and material to an ongoing criminal investigation.’ As a result, the district court never made a probable cause finding before ordering petitioner’s service provider to disclose months’ worth of petitioner’s cell phone location records.”
In holding that there is no reasonable expectation of privacy in these location records, however, the Sixth Circuit relied largely on four-decade-old Supreme Court precedent.
Nathan Freed Wessler with the American Civil Liberties Union Foundation represents Carpenter.
While the U.S. Attorney’s Office in Detroit represented the government at the Sixth Circuit, Acting Solicitor General Jeffrey Wall will do so before the high court.
James Harper with the Cato Institute and Jennifer Lynch with the Electronic Frontier Foundation are also filing briefs in the case.