CSLI

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Conducting Surveillance and Collecting Location Data in a Post-Carpenter World, Part II

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This post is the second in a series examining the impact of Carpenter v. United States, 585 U.S. ___, 138 S.Ct 2206 (2018) on electronic surveillance and the obtaining of location and other types of information from third parties. The first post in this series summarized post-Carpenter decisions relating to surveillance by pole camera and tower dumps. This post examines post-Carpenter rulings on the obtaining of real-time surveillance information through satellite-based Global Positioning System data (GPS) or cell site location information (CSLI). The last post in this series will examine the use of cell site simulators and the obtaining of other information about a person’s on-line activities or accounts from third parties.

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Carpenter, Search Warrants, and Court Orders Based on Probable Cause

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In Carpenter v. United States, __ U.S. __, __ S.Ct. __, 2018 WL 3073916 (June 22, 2018), the Supreme Court ruled that when the government obtains long-term, historical cell site location information (CSLI) about a person, it conducts a Fourth Amendment search  and so “the Government must generally obtain a warrant supported by probable cause before acquiring such records.” I previously blogged about Carpenter here.

That post referenced the possibility of using a court order supported by probable cause in lieu of a search warrant. The idea behind that suggestion was that some of the statutory execution procedures associated with search warrants are an awkward fit for this type of order. For example, G.S. 15A-252 requires that an officer executing a warrant must “read the warrant and give a copy of the warrant application . . . to the person to be searched, or the person in apparent control of the premises . . . to be searched.” In a case involving CSLI, is the officer supposed to read the warrant to Verizon? Or to the suspect, even though he or she will not be present at the search? But since I wrote my prior post, I’ve been asked several times whether using a court order based on probable cause in place of a search warrant would really be permissible. This post attempts to answer that question.

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Supreme Court Rules that Obtaining Cell Site Location Information Is a Search

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On Friday, the Supreme Court issued a long-awaited opinion in Carpenter v. United States. The Court held that when law enforcement obtains long-term cell site location information from a suspect’s service provider, it conducts a Fourth Amendment search that normally requires a warrant. Although the majority opinion states that it “is a narrow one,” the dissenting Justices and some scholars see it as a seismic shift that may have many aftershocks. I’ll summarize the case and then use former Secretary of Defense Donald Rumsfeld’s famous approach to address the “known knowns,” the “known unknowns,” and the “unknown unknowns” after Carpenter.

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Real-Time Cell Phone Tracking Update, Including a New Case

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The Court of Appeals of North Carolina recently decided a case about police obtaining real-time location information from a suspect’s cellular service provider. The case does not address the principal controversy concerning such information. Nonetheless, it provides a good refresher on the issue and marks a good time for an update on the national controversy about this issue.

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Fourth Circuit Reverses Graham: No Warrant Required for Historical Cell Site Location Information

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Last year, a panel of the Fourth Circuit decided United States v. Graham, 796 F.3d 332 (4th Cir. 2015). The panel ruled that “the government conducts a search under the Fourth Amendment when it obtains and inspects a cell phone user’s historical [cell site location information (CSLI)] for an extended period of time. . . . Its inspection by the government, therefore, requires a warrant, unless an established exception to the warrant requirement applies.” I discussed Graham here and here. Last week, the en banc Fourth Circuit reversed the panel, ruling that under the third-party doctrine, a cell phone subscriber has no reasonable expectation of privacy in historical cell site location information that he or she shares with a service provider, so it isn’t a Fourth Amendment “search” when law enforcement obtains such information, and a warrant isn’t required. The en banc opinion is here. This post discusses the opinion and considers the possibility of Supreme Court review or action by Congress.

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State v. Perry, Cell Site Location Information, and the Exclusionary Rule

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Last week, the court of appeals decided State v. Perry. It’s the appellate division’s first foray into cell site location information and a case that raises questions about the status of the exclusionary rule in North Carolina.

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Advice to Officers After Graham

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As I discussed here, the Fourth Circuit recently ruled in United States v. Graham, __ F.3d __, 2015 WL 4637931 (4th Cir. Aug. 5, 2015), that an officer who obtained two suspects’ cell site location information (CSLI) without a search warrant violated the Fourth Amendment. (The officer used a court order based on a lower standard, as purportedly authorized by the relevant federal statute, 18 U.S.C. § 2703(d).) I’ve had a number of practical questions about Graham from officers, agency attorneys, and judges, and I thought that I would collect some of the questions here.

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Fourth Circuit: Cell Site Location Information Requires a Search Warrant

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The Fourth Circuit just decided United States v. Graham, an important case about law enforcement access to cell site location information (CSLI). This post summarizes the case, explains its importance for North Carolina proceedings, and puts it in context in the broader debate about this type of information.

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Important New Opinion on Cell Phone Tracking

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On Tuesday, the Eleventh Circuit ruled, en banc, that law enforcement may obtain historical cell site location information without a search warrant, using a court order based on less than probable cause. There’s a controversy over what legal standard should govern law enforcement access to location information, and the Eleventh Circuit’s ruling is likely to be influential in the debate. This post explains the issue and puts the new decision in context.

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