Cell-Site Records and Search Warrants (Part 2)

The majority continued: The Government’s acquisition of Carpenter’s cell-site records was a Fourth Amendment search. The Fourth Amendment protects not only property interests but certain expectations of privacy as well. Katz v. United States, 389 U. S. 347, 351. Thus, when an individual “seeks to preserve something as private,” and his expectation of privacy is “one that society is prepared to recognize as reasonable,” official intrusion into that sphere generally qualifies as a search and requires a warrant supported by probable cause. Smith v. Maryland, 442 U. S. 735, 740 (internal quotation marks and alterations omitted).

The analysis regarding which expectations of privacy are entitled to protection is informed by historical understandings “of what was deemed an unreasonable search and seizure when the Fourth Amendment was adopted.” Carroll v. United States, 267 U. S. 132, 149. These Founding-era understandings continue to inform this Court when applying the Fourth Amendment to innovations in surveillance tools. See, e.g., Kyllo v. United States, 533 U. S. 27.

The digital data at issue—personal location information maintained by a third party—does not fit neatly under existing precedents but lies at the intersection of two lines of cases. One set addresses a person’s expectation of privacy in his physical location and movements. See, e.g., United States v. Jones, 565 U. S. 400 (five Justices concluding that privacy concerns would be raised by GPS tracking). The other addresses a person’s expectation of privacy in information voluntarily turned over to third parties. See United States v. Miller, 425 U. S. 435 (no expectation of privacy in financial records held by a bank), and Smith, 442 U. S. 735 (no expectation of privacy in records of dialed telephone numbers conveyed to telephone company).

Justice Roberts’ focus on the “original intent of the framers” gives a nod to a method of analysis for which the late Justice Scalia was well-known. The method becomes increasingly difficult to apply with the development of technologies that the framers could not have imagined hundreds of years ago.