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Post-Carpenter Ruling Says Call Records Aren't Content Or Cell Site Location Info; Thus, No 4th Amendment Protection


Judicial citations and applications of the recent Supreme Court decision in the Carpenter case continue to roll in. The narrow holding by the Supreme Court was that acquisition of cell site location info (CSLI) now requires a warrant, seeing as it can be used to effectively "track" someone over a period of days or months. Historical CSLI -- especially large amounts of it -- is far more revealing than many other records covered by the Third Party Doctrine. An "equilibrium shift" was needed and the court applied it.

The shift is trickling down to lower courts, leading to some examinations of the Carpenter ruling in cases that don't appear to call for it. The Supreme Court of California, ruling [PDF] on a case that originated 15 years ago, takes a brief moment to weigh the Carpenter ruling against the specifics of this appeal. (via FourthAmendment.com)

At stake here -- one of the several challenges raised by the defendant -- are phone records gathered with an SCA court order. Phone records were left undisturbed by the Carpenter ruling, but here's the court's brief examination of the issue.

The prosecution presented telephone records and testimony showing telephone calls among the various participants during relevant times. It obtained the telephone records pursuant to a court order under 18 United States Code section 2703, part of the federal Stored Communications Act. (See Carpenter v. United States (June 22, 2018, No. 16-402) 585 U.S. __. __ [2018 WL 3073916 p. *4].) Defendant moved to suppress the evidence, partly on the ground that obtaining the records without a search warrant violated his rights under the Fourth Amendment to the United States Constitution.

Unsurprisingly, the trial court -- ruling years before the Supreme Court's decision -- found this to be constitutional under the Smith v. Maryland decision, which solidified the Third Party Doctrine framework. The court here notes the records now exempted from the Third Party Doctrine include records obtainable under the Stored Communications Act. Still, it finds no violation -- not because the Carpenter ruling wasn't in place yet, but because call records aren't communications.

The United States Supreme Court has now held that a search warrant is needed to obtain at least some types of information governed by the Stored Communications Act. (Carpenter v. United States, supra, 2018 WL 3073916.) The court stressed that its holding is “narrow,” and that it did “not disturb the application of” cases such as Smith v. Maryland, supra, 442 U.S. 735. (Carpenter, at p. *13.) It is not clear whether Carpenter’s holding would apply here. But we need not decide the question. Any error was harmless beyond a reasonable doubt. The evidence merely showed that some of the alleged conspirators communicated by telephone at certain times; the content of the communications was not revealed. Although relevant, the evidence was unimportant in light of the trial as a whole.

Even if this were being challenged post-Carpenter and even if the originating events happened after the Supreme Court's decision, the outcome would still be the same. The Supreme Court issued no opinion on the privacy implications of phone call metadata and took care to leave the Third Party Doctrine standing, minus the small part it trimmed off for historical CSLI. Content has always required warrants. There's a whole set of wiretap laws and litigation pertaining to it. Dialed numbers haven't been given Constitutional protection in over 50 years. But it is good to know courts are at least seeking to apply the ruling in cases where there's no obvious application, rather than ignoring the implications of the ruling completely.


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