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Supreme Court: Is phone location data admissible without warrant?


Supreme Court: Is phone location data admissible without warrant?

On behalf of Patrick T. McNally, Attorney at Law | 
December 4, 2017

The U.S. Supreme Court has just heard an appeal on whether police can collect cellphone location data without a warrant and still have it be admissible against criminal defendants. The case pits Americans’ privacy rights against the government’s interest in easy access to personal data that can solve crimes.

The case before the court involves several armed robberies of Radio Shack and T-Mobile stores near Detroit and in northwestern Ohio. After getting a court order, law enforcement pulled records from the cellphone towers nearest the robberies and used them to determine who had been in the area at the time of each robbery.

That sounds pretty slick, but allowing it without the protection of a warrant gives law enforcement far too much private information, according to the ACLU. Cellphone location records, it turns out, allow police to paint a picture of a person’s life in greater detail than most surveillance would allow. The records “make it possible to reconstruct in detail everywhere an individual has traveled over hours, days, weeks or months,” the ACLU said.

In this case, the authorities obtained 127 days’ worth of records on the suspect. Using those, they could discern everything from when the man was sleeping to where he went to church.

As jurists on all sides of the political spectrum have acknowledged, the vast changes in information technology over the past couple of decades have profoundly altered our expectations of privacy. That could mean that we should give up our antiquated notions of some conduct being off-limits to the government in most situations. Or, it could mean that law enforcement has been overstepping constitutional limits for years.

The police have been relying on laws and Supreme Court precedents that treat phone records as third-party business records, which are not private. However, those laws and decisions hail from long before the digital age — back when phone records were merely a list of calls dialed and received from stationary home telephones.

Should the substantial amount of data available from cellphone location logs be private except when a warrant is obtained?

“Would you rather have law enforcement rummaging through your desk drawer at home, or rummaging through your iPhone?” asked Chief Justice John Roberts in a previous case about cellphone privacy. “I mean, there’s much more private information on the iPhone than in most desk drawers.”

Supreme Court decisions are typically released several months after the case is heard.

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