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The Privacy Fight For Digital Data Warrants Is Just Starting

Publisher: Law360
September 14, 2018

Jed Davis was quoted in a feature article, "The Privacy Fight For Digital Data Warrants Is Just Starting," published by Law360. The article discusses as yet-unresolved implications of the U.S. Supreme Court's June ruling in U.S. v. Carpenter.

The defendant in Carpenter had been convicted of armed robbery, based in part on four months of cell-site records that the government had obtained from his mobile phone providers and that showed him in the vicinity of each of four retail outlets when each had been robbed. The government had obtained the cell-site records on a showing of reasonable suspicion, relying on prior Supreme Court jurisprudence that permits law enforcement without a search warrant to acquire from a service provider information that a person voluntarily disclosed to it. In, Carpenter, however, the Supreme Court condemned as overly invasive the government's access to four months of continuous cell-site records – and held that, under the Fourth Amendment, a warrant based on probable cause is necessary to acquire cell-site records covering seven days or more.

The Law360 article focuses on the uncertain ripple effects of Carpenter's holding. The article reports on location tracking cases pending in the highest courts of Massachusetts and Maine and interviews privacy attorneys and former federal prosecutors, including Davis. Davis told Law360 it's unclear from the court's ruling whether law enforcement will also be required to get a warrant for historical location data covering a period of under seven days. Emphasizing the importance of cell-site location evidence to law enforcement as a "building block to criminal investigations in a mobile world," Davis stated that authorities may press for clarification, by seeking, for example, to obtain based on reasonable suspicious records for a single hour during business hours, when a suspect is in a public place.

In addition, Davis observed that Carpenter's focus on cell-site data as uniquely intrusive may breed more confusion about the reach and vitality of the third-party doctrine. "It remains to be seen whether the third-party-doctrine survives, and whether the court's characterization of location data as different from other forms of [third-party-held] information survives," he said.

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