In the digital age, when so many people keep cell phones, Ipads, fitness trackers and other electronic devices with them at all times, the courts are grappling with issues of privacy when law enforcement seeks to obtain information about people during their investigations. We have discussed some of these issues such as whether a police officer can look through a suspect’s phone for incriminating information upon an arrest. The police can normally search a person and check their belongings upon an arrest to make sure there are no weapons, officer safety issues or evidence if there is reason to believe evidence might be present. A phone or Ipad-like device can contain all sorts of private information and evidence. However, courts have generally ruled that the police need a search warrant to search a person’s phone even if it is seized pursuant to a lawful arrest.
Another type of data that is stored in electronic devices (or stored with third party entities after being collected by the devices) is location information. Obviously, a suspect’s location can be critical information if police are investigating an incident like a shooting, robbery or burglary, and they are trying to determine if a suspect was in the area at the time. The question that arose in this case was whether the police can contact a person’s cell phone provider and request the data they maintain showing customers’ locations. Or, do the police have to get a search warrant to request that information? Some courts across the country and in Florida have allowed law enforcement to obtain this information without a warrant based on the idea that customers do not have a reasonable expectation of privacy in their location information and/or they do not have standing to object to this information being released by some third party entity.
What makes this data different from information that is kept on one’s phone is that it is automatically generated when a person has a cell phone and it is stored by a third party rather than on one’s phone. However, the United States Supreme Court recently ruled that the police do have to get a search warrant before requesting this location data from cell phone providers. They found people do have a reasonable expectation of privacy in their location information.
While this case (Carpenter v. United States) was limited to cell phone companies that keep location information for at least a week, the rationale could apply to many companies that maintain location information about customers. These days, people allow their locations to be collected and stored in many different ways- using GPS, cell phones, fitness trackers and apps and websites that ask the user to click a box allowing the app or site to use their location for some purpose or another. People seem to be fairly oblivious about how often their location is documented and how many entities record and store that information. The government can gain access to that information, however they appear to require a search warrant first, for now.