Attorneys interested in electronic communications privacy issues should take note of a case currently under consideration by the Supreme Court that implicates the Stored Communications Act (SCA).
The court will hear oral argument this term in Carpenter v. United States. Carpenter
concerns whether Fourth Amendment protections apply to cell phone
“transactional records,” which reveal the location and movements of a
cell phone. The case is important because it will reconcile a conflict
between the long-standing “third party” doctrine and recent cases
recognizing privacy interests in electronic data.
In Carpenter, federal law enforcement obtained the
transactional records of defendant Carpenter’s cell phones. Federal
agents used the data to determine that Carpenter’s cell phones connected
with towers near robberies they were investigating.
enforcement obtained those records through a court order under Section
2703 of the SCA. That provision allows the government to compel
disclosure of communication “transactional records” based on “reasonable
grounds to believe” that the information is relevant to an
investigation. This standard is less stringent than the Fourth
Amendment’s requirement of a warrant supported by “probable cause.”
the trial court, the defendant moved to suppress the service records,
arguing that the more stringent Fourth Amendment standard should apply
to the records. That motion was denied, and Carpenter was convicted.
appeal, the Sixth Circuit also rejected the defendant’s Fourth
Amendment argument, finding that the defendant had no reasonable
expectation of privacy in his cell phone records under the “third party”