from the little-bit-more-Fourth-for-everyone dept

The Supreme Court made it clear in 2018 with its Carpenter decision: gathering historical cell site location info in bulk was impermissible under the Fourth Amendment. If law enforcement wanted to engage in third-party-enabled long term tracking of suspects via this info, it needed to get a warrant first.

That ruling seemed to make everything crystal clear. But it didn’t. Law enforcement sought other ways to obtain this same data without having to run anything by a judge. Central to the Carpenter decision were cell service providers. This was the government approaching these providers to obtain location data dating back to whatever data investigators thought might be useful.

The Carpenter decision rolled back a bit of the Third Party Doctrine. The Supreme Court said in this ruling that people may be aware cell service providers are gathering this data (something essential to ensuring cell service), but that wasn’t the same thing as giving the government permission to access weeks or months of this data without a warrant.

With this one subset of third parties excised from the Third Party Doctrine, government agencies began looking for other sources not specifically referenced by this ruling. And they found them. Any number of data brokers harvest location data from cell phone apps and sell access to this data to the government.

As it stands now, this is still technically legal. But it’s only technically legal because no one has had an opportunity to directly challenge this warrantless acquisition in court. Meanwhile, data brokers continue to give the government what it wants: lots of data at low, low prices, all of it accessible by utilizing nothing more than a cleared check and laptop.

Courts can’t change this new status quo on their own. They need a suppression request worth considering before they can do anything about it. And even if they could do something about it