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Third Party Doctrine and CSLI Analysis

John W. Liles II

LEPSL 530

June3, 2019

Duane Voss
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Third Party Doctrine and CSLI Analysis

In the Supreme Court case, Carpenter v. United States, 138 S. Ct. 2206, the court was

asked to decide whether the acquisition of Carpenters cell-site location information (CSLI) by

the government was a violation of the defendants Fourth Amendment rights. Another question

also was; when the government accesses cell phone records to track the past movements of the

user, which is stored by cell phone providers, does the user have an expectation of privacy?

Chief Justice Robert presented the majority opinion, where the court ruled the user does have an

privacy expectation, and the government must have probable cause to request the records

through a search warrant.

Before the Carpenter case, law enforcement lawfully gained access to CSLI records

through the Stored Communications Act, which required the government to have a reasonable

belief the records were relevant to ongoing investigations. In this case, Carpenter was involved

in multiple robberies and had several co-conspirators pointing to him as the leader. Chief Justice

Roberts explained the courts' majority opinion and sites similarities to United States v. Jones,

565 U.S.400, 132 S. Ct. 945, 181 L. E.d.2d.91 as established case law involving GPS

monitoring. He says the similarities to that case include the court's decision as establishing the

reasonable expectation of privacy as it pertains to moving freely in the public realm. He

acknowledges, since you are out in the public, an expectation of privacy is diminished.

However, since cell phones are a normal part of most peoples daily lives, tracking one's

movement through CSLI does not mean a person should lose their expectation of privacy.

Therefore, when acquiring a person's location by obtaining CSLI data from the third party cell

phone carrier, as stated by Justice Roberts, "the Act is not a permissible mechanism for accessing
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historical cell-site records. Before compelling a wireless carrier to turn over a subscriber's cell-

site location information, the government's obligation is a familiar one: get a warrant" (p.5).

I do not agree with Chief Justice Roberts's opinion and favor the dissenting opinion

offered by Chief Justice Kennedy. The majority opinion fails to acknowledge that ownership

and possession of a cell phone is a choice. Each individual in possession of a cell wants it to

work, which is why several carriers go to such lengths to provide multiple cell sites to their

customers. If someone truly wanted to assert their expectation of privacy, they could choose not

to carry their cell phone, and certainly not while committing a crime. Also, for law enforcement

to obtain these records, there remains a mechanism already in place with the Stored

Communications Act. Collecting CSLI data is not the same as pulling back the curtains of a

home and looking inside and collecting the data is non-intrusive. It merely captures approximate

locations of the person and the time they were in that area. Finally, Justice Kennedy rightfully

points out that “CSLI, is no different from the many other kinds of business records the

government has a lawful right to obtain by compulsory process" (p.20). Therefore I support the

dissenting opinion and disagree with the majority.

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Reference

Supreme Court Of The United States, Carpenter V. United States. (Argued; June 22, 2018)

No.16-402