The Supreme Court this morning handed down the biggest criminal case of its concluding Term, Carpenter v. US, No. 16-402 (S. Ct. June 22, 2018) (available here). Though I will leave it to Fourth Amendment experts to unpack the majority opinion (authored by Chief Justice Roberts and joined by all the more liberal Justices) and all the separate dissenting opinions (there are four), my first-cut sense is that this is a "big but narrow" win for criminal defendants and privacy advocates. Here are a few key passages from the majority opinion leading me to that conclusion:
Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. The location information obtained from Carpenter’s wireless carriers was the product of a search....
We therefore decline to extend Smith and Miller to the collection of CSLI. Given the unique nature of cell phone location information, the fact that the Government obtained the information from a third party does not overcome Carpenter’s claim to Fourth Amendment protection. The Government’s acquisition of the cell-site records was a search within the meaning of the Fourth Amendment.
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Our decision today is a narrow one. We do not express a view on matters not before us: real-time CSLI or “tower dumps” (a download of information on all the devices that connected to a particular cell site during a particular interval). We do not disturb the application of Smith and Miller or call into question conventional surveillance techniques and tools, such as security cameras. Nor do we address other business records that might incidentally reveal location information. Further, our opinion does not consider other collection techniques involving foreign affairs or national security. As Justice Frankfurter noted when considering new innovations in airplanes and radios, the Court must tread carefully in such cases, to ensure that we do not “embarrass the future.” Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292, 300 (1944).
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