Along with being perplexed, I admit to being slightly amused when I hear someone say they will not receive a COVID-19 vaccination because the shots contain a microchip that allows Bill Gates and the government to monitor their location 24/7.
Friends, I have two bits of news for you. First, Bill Gates could care less about what you do. Second, if you have a cellphone or other internet-connected devices like an Apple watch, or use cloud-based apps or drive a car with a GPS system, the government, including law enforcement, can already track where you are, where you have been and when you were there.
You, me, just about everyone other than Luddites living in caves, are traceable because cellphone and wireless service providers, services like OnStar, and tech companies like Google are able to store historical and real-time location data that is generated when our devices connect to cell towers or our vehicles are linked to GPS satellites.
And if you think turning all this stuff off enables you to hide, you are sorely mistaken. The info is still being collected and stored, often for as long as five years.
The untold terabytes of location data being gathered every second of every day has proven to be a powerful crimefighting tool. Historical or real-time cell-site location information (CSLI) and GPS satellite signals can help police pinpoint where a suspect is or has been. If there is no suspect, tower dump and geo-fencing “reverse location” searches can identify all the devices that were in or near the scene of a crime when it occurred.
Police can then use traditional investigatory techniques to nab the offender.
But as is often the case when disruptive technology intersects with the law, the rapidly growing use of data collection and analysis raises a number of serious Constitutional issues. Chief among them: Is location data protected by the Fourth Amendment’s prohibition against unreasonable search and seizure?
The answer thanks to the Supreme Court’s 5-4 ruling in Carpenter v. United States, has been an equivocal “Yes!” since 2018.
Prior to the Carpenter case, all police needed to obtain a warrant for location data was a "reasonable basis" to believe the material was relevant to an ongoing criminal investigation. In what has become a landmark decision, the majority held that James Carpenter’s historic CSLI data was indeed protected by the Fourth Amendment and therefore could only be accessed if the government had probable cause to believe it bore evidence of a crime.
Carpenter’s conviction for stealing cellphones — how is that for irony — was overturned as a result of the imposition of this much more rigorous evidentiary standard.
It is important to note, however, that Carpenter applies only to a specific individual’s historic CSLI data. Law enforcement can still use the highly subjective reasonable basis standard to obtain the information needed to conduct tower dump and geo-fence-based reverse location searches — for now.
I added that caveat because litigation related to this aspect of data retrieval and usage is now working its way through state and federal courts.
I will almost certainly address this topic again as the law evolves. Until then, remember, someone is watching you, and it is not Bill Gates.— Attorney David Betras, a senior partner at Betras, Kopp & Harshman LLC., directs the firm’s non-litigation activities and practices criminal defense law in both the state and federal courts. He has practiced law for 35 years. Have a legal question you'd like answered here? Send it to email@example.com.