State Courts' Interpretation of Carpenter Decision Could Have National Impact

The state cases test how Carpenter will be interpreted, said Mana Azarmi, policy counsel for the Center for Democracy and Technology, among those we interviewed. Privacy advocates believe the ruling’s reasoning for protecting CSLI information could “easily be used to protect other types of sensitive location data,” she said. Cases are “jurisdictionally limited” to the state of the court but will shed light on the judicial branch’s thinking, helping privacy advocates craft litigation strategies, she said. CTIA and law enforcement associations didn’t comment.

Carpenter was a “giant leap forward for privacy rights,” but “landed really far short on where we need to be on location privacy,” said Jake Laperruque, senior counsel at the Project on Government Oversight’s Constitution Project. State courts are addressing how the ruling applies in situations including real-time tracking and time limits for tracking, he said. Privacy advocates want warrants to be required for real-time location, just as with historical monitoring, said Laperruque, calling it “a distinction without a difference.” Narrowing the timeline from seven days probably will “go back and forth through the courts for the next couple of years,” he said.

The Maine Supreme Court will hear oral argument Tuesday in Maine v. O’Donnell, related to Carpenter’s application to real-time cellphone tracking. Audio will be streamed at 9 a.m., said a schedule. At dispute is the legality of police asking Verizon to provide real-time cellphone location data of two burglary suspects; a trial court ruled the suspects’ Fourth Amendment rights weren’t violated because the location information was obtained from a third party. A case pending in Massachusetts Supreme Court similarly will consider if, without a warrant, law enforcement can track real-time CSLI data. Commonwealth v. Almonor follows police asking a carrier to ping the cellphone of a murder suspect; a trial court ruled against the police and the state appealed. The Electronic Frontier Foundation and the American Civil Liberties Union cited Carpenter as they opposed the warrantless tracking in amicus briefs in both state cases. Verizon didn’t comment.

Two other pending Massachusetts Supreme Court cases also consider Carpenter issues. Commonwealth v. Johnson asks if police can obtain past location data from an ankle monitor after the wearer’s probation ended, and Commonwealth v. Feliz asks if law enforcement can track location from an ankle monitor of a noncontact sex offender on probation without any reason specific to that individual. ACLU filed an amicus brief with public defenders in Johnson.

The Florida Supreme Court referred to Carpenter in last month’s ruling that a warrant is required for using cellsite simulators. Based on Carpenter, “we can discern no reason why a warrant would not be required for the more invasive use of a cell-site simulator,” the court said.

Some issues could “bubble up” to federal courts and even return to the Supreme Court, Azarmi said. Or, rather than allow courts to figure out every possible Carpenter application, maybe Congress “fills in the gaps,” she said. Clear national rules would be better, she said. There might be more Capitol Hill interest if the House flips in November's elections, but with so many items to deal with, it’s hard to predict congressional action, she said.

The issue could go back to the Supreme Court, especially if the fresh litigation produces court splits, Laperruque said. “I wouldn’t be surprised if in the next year or two, Congress got ahead of the Supreme Court, if for no other reason than to give law enforcement clarity.” State court cases could provide impetus for action and inform how Congress writes a bill, he said. “Seeing how these additional rules and regulations play out in practice … can make lawmakers less hesitant” to act, he said. November’s elections might not affect chances of Hill action because mobile privacy is a bipartisan issue, he said.