NV and 6th Cir. Agree, Fourth Amendment Does Not Protect Cell Location Data

Cell phone customers do not have a reasonable expectation of privacy in the records of cell tower usage kept by wireless carrier that reveal where phones were used.

United States v. Carpenter, 2016 BL 114989, 6th Cir., No. 14-1572, 4/13/16;
Taylor v. State, 2016 BL 127001, Nev., No. 65388, 4/21/16

    In Carpenter, the Sixth Circuit Court of Appeals ruled that police may rely on court orders rather than search warrants to gather information about a suspect's movements through phone records because customers do not have a reasonable expectation of privacy in the company's records of cell tower usage. The court distinguished content from "routing information" by saying "[c]ontent, per this distinction, is protected under the Fourth Amendment, but routing information is not." The monitoring of how communications travel "from point A to point B" is not protected.

    In Taylor, the Nevada Supreme Court ruled that customers do not have a reasonable expectation of privacy in the cell tower location records that reveal the general areas where the phones were used. This court determined that the information was considered business records that belonged to a third party. The court stated that "a warrant requiring probable cause was not required before obtaining that information" "because Taylor does not have a reasonable expectation of privacy in business records made, kept and owned by his provider."

http://www.bloomberglaw.com/public/desktop/document/UNITED_STATES_OF_AMERICA_PlaintiffAppellee_v_No_TIMOTHY_IVORY_CAR?1463070438

http://www.bloomberglaw.com/public/desktop/document/Taylor_v_State_No_65388_2016_BL_127001_Nev_Apr_21_2016_Court_Opin?1463582294

Probationers Get Right To Digital Privacy

The government may not search a probationer's mobile phone based only on the fact that the person agreed to allow the government to search his "property" at any time.

 

United States v. Lara, 2016 BL 64094, 9th Cir., No. 14-50120, 3/3/16

      In this case, the Ninth Circuit Court of Appeals confirmed their view that a probationer's acceptance of specific search terms in a probation agreement does not, by itself, justify otherwise unconstitutional searches. The court also extended some digital privacy rights to nonviolent probationers. The court said that "there is a limit on the price the government may exact in return for granting probation."

     Without specific mention of digital devices in a probation agreement, ambiguous terms will not be read to include mobile phones and the data therein. Even a search of a probationer needs to be reasonable. That is determined by balancing the degree of intrusion against the degree to which the search is needed to advance a legitimate government interest.

     The court here indicated that even though the probationer's privacy interest was diminished, and the government had a clear interest in combatting recidivism, looking through the nonviolent probationer's phone was not justified just because they missed a meeting.

 http://www.bloomberglaw.com/public/desktop/document/UNITED_STATES_OF_AMERICA_Plaintiff_Appellee_v_PAULO_LARA_BRO_1_De?1457714431