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takyon writes:

The U.S. Supreme Court will hear oral arguments on Wednesday in Carpenter v. United States, a case dealing with the use of cell phone records without a warrant using the Stored Communications Act:

The irony of the case before the court, Carpenter v. United States, is that it involves massive cellphone thefts and a string of armed robberies at Radio Shacks in Michigan and Ohio. The robbers entered the stores, guns drawn, herded patrons to the back, loaded up laundry bags with new smartphones, and then later sold their booty to fences for tens of thousands of dollars per haul.

[...] The question before the Supreme Court is whether the cops should have gotten a search warrant in order to obtain the cell location information. A warrant would have required them to show a judge that they had probable cause to believe those records contained evidence of a crime. What the police did instead was obtain a court order under the federal Stored Communications Act, which is easier. In this case, as in others, prosecutors argue that the Supreme Court has long viewed information shared by a consumer as fair game without a warrant. Even before the Stored Communications law was enacted, the high court ruled that you lose your Fourth Amendment right to privacy when you share information with a third party, like the phone company.

Fourth Amendment scholar Orin Kerr contends that the idea of tracking someone's movements in public is not new. The police, for instance, tail a suspect, or check on his alibi. Only when they search the suspect's home or person do they have to get a court-approved warrant. Kerr contends that the cell-cite location records at issue in this case "are basically the network equivalent of public observation that traditionally would not be protected" by a warrant requirement. After all, he notes, the cell-site location information is not maintained by government decree. Rather, wireless providers keep the data recorded by cell towers in order to monitor and improve their service.

Nathan Freed Wessler of the American Civil Liberties Union is challenging that argument in the Supreme Court. This kind of cellphone technology "really changes the game and threatens to upend our expectation of privacy in the digital age," he says. After all, he argues, this wasn't a case of the police following a shady person.

"They decided after the fact they wanted to try to tie him [Carpenter] to a crime," Wessler says, "and never before in the history of this country has the government had the power to press rewind on someone's life and chart out where they were going over the course of four months." Four months and nearly 13,000 calls, to be precise.

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