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

In a time of rapid technological advancement, courts must interpret the Constitution to accommodate modern technology. When the Constitution was written over two-hundred 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 two-hundred-year-old prohibition against "unreasonable searches and seizures" to digital privacy rights. 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. Whether the warrantless seizure and search of historical cell-phone records revealing the location and movements of a cell-phone user over the course of 127 days is permitted by the Fourth Amendment. This is an incredibly important issue impacting every American with a cell phone and setting the stage moving forward for 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. Its 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 e-mail communication, but not in the non-content information such as sender and recipient e-mail addresses or IP addresses. The court determined that location-data from cell phones falls under the latter category of unprotected non-content information.

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. As already mentioned, the Sixth Circuit has held 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.

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 Floridattorney to discuss your situation. If you need assistance or further information, please do not hesitate to contact our firm to see how we can help you.

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