Kat Sittenauer, Meagan Carmack

I. Question Presented
a. With the protections given by the Fourth Amendment, and an amalgamation of other
rights outlined in the Constitution, does the warrantless collection of metadata by a
government authority without the correct warrant for search, including location
information, from cellphone towers violate privacy rights?
II. Introduction
a. As of now, under the Stored Communications Act, 18 U.S.C. 2703(d), a judge can issue a
warrant for the collection of metadata when there is essentially a reasonable suspicion
and a reasonable need for the information. Specifically, the SCA states “specific and
articulable facts show[…] that there are reasonable grounds to believe that the contents of
a wire or electronic communication, or the records or other information sought, are
relevant and material to an ongoing criminal investigation” (18 U.S.C). As it is, the
government has the authority to seize metadata from a “tower dump” with the help of a
third-party service provider and comb through all the cell phone records of calls, call
duration, and location of the cell phone.
The privacy violations here are evident. In the current time, police and other government
bodies can seize this metadata without a warrant, and only with the compliance of the
third-party service provider. Under the Fourth Amendment, it is stated that citizens shall
be protected from unwarranted and unreasonable searches and seizures of the “papers and
personal effects” and to be secure in those papers and effects. In this instance, that very
security is violated due to the lax nature of metadata collection by the government or
governmental authority.
III. Statement of Case
a. In April of 2011, a string of robberies in a Detroit suburb of RadioShack stores and
T-Mobile stores put four men behind bars for connection to the robberies. One of the men
confessed to the crime and implicated Timothy Ivory Carter as one of the robbers in the
connected crimes. With this information, FBI law enforcement obtained a warrant to
seize cell tower records from the last 127 days from a magistrate judge. The information
obtained by the FBI showed Timothy Carpenter’s location being within two miles of each
store that was robbed on each day it was robbed. Using this information, the FBI charged
Timothy Carpenter with robbery and several other charges as well.
Timothy Carpenter made a motion to suppress the evidence gained from the cell towers.
His reasoning was that the FBI needed probable cause to get a warrant to seize the tower
data. The Illinois district court dismissed the motion to suppress, and when appealed to
the Sixth Circuit Court to suppress the evidence, the Sixth Circuit affirmed the lower
court’s decision to let the evidence stand.
IV. Argument
 a. Why metadata is a privacy matter
- With the ever-increasing dependency on cell phones and mobile connectivity, it can be
reasonably inferred that this information is just as private as letters are and were back
before cell phones and even landline communication. The data collected from any phone
call, text message, or email is considered metadata. Metadata collects the sender
identification, recipient identification, location from which the call/text/email was made
and sent and received from.
- The key issue in the case of Timothy Carpenter is the violation of privacy regarding his
location being disclosed by cell phone records. As it stands in the Stored
Communications Act, 18 U.S.C. 2702(b) §A(ii) this data may be collected if the data
should “appear to pertain to the commission of a crime.” This does note require a warrant
in order to be collected; which is where the violation is evident. It is also noted in the
same act, section 2702(c) that nowhere does it state that customer information can be
disclosed to a government authority is the present danger of death is not imminent. In the
present case, there was no threat of death that motivated the FBI to obtain the metadata
and customer information from MetroPCS (the service provider).
b. How Metadata is an “effect” of a person
c. Reasonable expectation of privacy in metadata matters
- In ​Smith v. Maryland​ (1979), it was decided that a person had the right to a reasonable
expectation of privacy. However, that phone numbers dialed by a phone were recorded
by the phone company, and the person had no right to privacy regarding that information
because that information was in the regular business of the phone company.
- Jones v. United States​ made the precedent that police or a government authority cannot
search a person’s house or property or seize property for a criminal investigation without
a warrant present at the time of the search or seizure. Here, it is important to note that a
warrant must be present for the specified search of the search is to be legal. There needs
to be a legally recognized and authorized document present at the time of the search, and
the search r seizure cannot be based solely on reasonable suspicion.
- United States v. Jones​ outlined a more modern expectation of privacy regarding location
tracking of people. In the case, Antoine Jones was arrested for possession of drugs, but
released on all charges save conspiracy. Without a warrant, the police had placed a
tracker on Jones’ Jeep and watched his movements for a month. This evidence was then
brought to court, but the jury still found Jones not guilty of drug possession.
- The case made it up to the Supreme Court, and all nine justices found Jones’ rights to
have been violated by the unwarranted tracking of his location throughout that one
month. This can be applied to cell phone tracking as well. As stated in ​Smith v. Maryland,​
the phone numbers recorded by a phone company are not protected under a reasonable
right to privacy. However, it is the location tracking in the case before the court today
that violates Timothy Carpenter’s rights. The FBI does not have the authority to search
 through metadata records to weed out his location during the specified date. The numbers
he called are not subject to protection, but his location should be.
- Any amount of information collected needs to be done under the direction of a search
warrant, from the approval of a judge with the correct authority
- Purse analogy
- It is reasonably accepted that when a person steps out into the public
domain, that their location is then known to the public. If the same person
is carry a purse, it can be noted well within the public domain that the
person is carrying a purse. However, what cannot be known without a
search warrant, is the contents of the person’s purse. The inside of the
purse is a personal effect of the carrier and does not need to be disclosed
to an authority figure unless a search warrant is present. Similar to a house
or home. Most similar to a cell phone and its metadata.
- Several arguments have stated in the past that there is no reasonable
expectation of privacy when out in public. In the Stored Communications
Act, 18 U.S.C. 2703(d) the required court order must be from a federal or
state subpoena or from a federal or state grand jury in order to obtain
information from a third-party service provider. This was not done in the
case before the Court today. In this case, the warrant for a search was
issued by a magistrate judge,
V. Cases
a. Smith​ ​v.​ ​Maryland
b. Jones v. United States
c. United States v. Jones
VI. US Constitutional and Statutory Provisions Discussed
a. U.S. const. amend. IV
b. Stored Communications Act 18 U.S.C.
- § 2702(b)(A)(ii)
- §2703(d)
VII. Other Authorities

I.​ ​The Problem with Unwarranted Collection of Metadata

In ​Weeks v. U.S.​ (1914), the defendant, Mr. Weeks, was tried based on evidence police gained
through unlawful entry without a search warrant. While there, they obtained several books,
letters, and other personal effects. These pieces of evidence together implicated Mr. Weeks in
mail fraud, for which he was tried. The Supreme Court then overruled this admission of
evidence into court. The majority option states that in a criminal investigation, there must be
probable cause to search a potential suspect’s personal belongings or property. If this evidence
is collected without a warrant (unlawfully), then the evidence cannot be admissible in court,
which begat the Exclusionary Rule doctrine. This doctrine has evolved as the nature of
information has evolved over the last century, and is directly pertinent to why metadata is not
only warrantable, but also necessary to be used in a trial.
If we extend metadata to be a warrantable object that needs to uphold the probable cause
clause of the Fourth Amendment, then under Aguilar v. Texas (1964) which partially overruled
Carroll v. U.S. (1925), suspicion or belief is not sufficient, and that for trial warrants, probable
cause must be objectively and sufficiently established to pursue the warrant. There must be
some probable cause to search tower dumps in order to ensure the Fourth Amendment is not in
fact violated.
Warrants are needed to search the contents of computers, cellphones and other devices as
determined by the Supreme Court when it ruled unanimously in Riley v. California (2014) based
on Fourth Amendment grounds, most notably the right to not be subjected to unreasonable
search and seizures without probable cause. In the majority opinion, Chief Justice Roberts
writes that the exception to warrants used in this case, that of protecting officer safety and
preservation of evidence, are not applicable. Therefore, as personal effects and/or contents of
electronic communications, metadata should be subject to the same level of scrutiny.
Furthermore, in Justice Alito’s concurring opinion, Alito suggested that legislative action be
taken to determine the manners in which a phone or other computer containing a myriad of
personal information which is protected under the Fourth from being subject to unlawful search
and seizure. This counsel holds the same for Mr. Carpenter. Metadata was used to implicate
him through a magistrate ordered tower dump.
There were not sufficient grounds for probable cause to obtain a trial warrant to search the vast
amounts of data about location of Mr. Carpenter’s person, or the records of his cellular phone
from the tower dump. As determined in ​Riley​ taken in conjunction with the Exclusionary Rule
doctrine, this is unlawful attainment of Mr. Carpenter’s personal information and should not be
admissible in court on Fourth Amendment grounds. Furthermore, in order to establish probable
cause to the satisfaction of a judge, the Fourth Amendment dictates that the officer seeking a
warrant ​must make an “[o] ath or affirmation” as to the truth of the matters supporting probable
cause, and must “particularly describ [e] the place to be searched, and the persons or things to
be seized.” A search warrant is invalid if it covers too broad an area or does not identify specific
items or persons.
By nature, a tower dump is not specific enough to meet this level of scrutiny. As technology
continues to progress further into the twenty first century, the future of privacy hangs in the
balance as we decide what rights we have as American citizens to privacy of “the cloud”, and
through the Third Party Doctrine, the current legal paradigm indicates that this privacy will
continue to be sacrificed. This is extremely evident by the fact evidence gathered without
meeting the scrutiny needed to establish probable cause in a criminal case, pre-trial or no, is
worrisome.

II.​ ​Exceptions to Probable Cause Warrant Requirements and Why Metadata does not
Apply
Though the Supreme Court and other aggregate legal practices that are widely agreed upon do
allow for some exceptions to the Exclusionary Rule, probable cause is crucial to protecting the
Fourth Amendment and is directly applicable to metadata. Below these exclusions are listed:
​i. Exigent circumstance
​ii. Consent to search
​iii. Search incident to lawful arrest
​iv. Automobile exception
​v. Plain view and open fields
​vi. Terry stops
​vii. Border Searches

Because metadata is not actually a physical object, exclusions iv, v, vi, and vii do not apply. Out
of the remaining three, Mr. Carpenter did not give the magistrate permission to search his
personal device, so this is also not applicable. Exigent circumstances are also not applicable to
metadata, as an officer’s life is not put in immediate danger without the seizure of metadata as
might be true of an assault weapon. This leaves a search incident to lawful arrest.
In ​Riley v. U.S.​ (2014), it was determined that a cell phone must be the object of a warrant to be
lawfully searched with the designation of “minicomputer” that contains highly personal and
sensitive information that the Exclusionary Rule applies to. Like in ​Weeks​, if the information
could implicate someone in a felony, then it does fall under this umbrella.
Therefore, under all of the current acceptable parameters for exceptions to warrant
requirements, metadata is NOT exempt from the warrant requirements deemed necessary
under the Fourth Amendment since the Supreme Court already ruled in Riley v. California that
officers need a warrant to search electronic personal effects in 2014.

III.​ ​Privacy

Besides Fourth Amendment grounds, the prosecution of Mr. Carpenter was unlawful because
the acquisition of his personal data through a tower dump violated his right to privacy. The right
to privacy is an implied right, and though it is not enumerated, Griswold builds the right out of
the right to “protection from governmental intrusion”. ​Before ​Griswold​, as cited in ​Olmstead v. US​,
the right to privacy was seen as the “right to be let alone”. This certainly is seen in ​Griswold, Roe v.
Wade, ​and ​Casey;​ in Union Pacific Railway v. Botsford (1891), the majority opinion states, “​No right is
held more sacred, or is more carefully guarded, by the common law, than the right of every individual to
the possession and control of his own person, free from all restraint or interference of others.”
In the landmark case ​Griswold v. Connecticut ​(1964), the majority opinion found that a
Connecticut law prohibiting married couples from pursuing birth control violated the citizens’
right to privacy by taking the enumerated rights in the Bill of Rights and the Constitution together
and finding the logical conclusions and consequences of said rights. This formed the privacy
“penumbra”. In the majority opinion, the self-incrimination clause of the Fifth Amendment
combined with the right to freedom of association of the First Amendment implied a right to
privacy. In a concurring opinion, Justice Goldberg found that based on the Ninth amendment, all
of the enumerated rights of the Constitution and the Bill of Rights are not the only rights
guaranteed for American citizens, and that the right to privacy as one of these implied rights is
retained by the people.
Mr. Carpenter has a right to privacy, as does every other American citizen as guaranteed
by the Ninth, Fifth, and this right was violated through the attainment of his personal records
without probable cause or consent to be searched. Thus, the collection and attainment of
metadata without due process is not only a violation of the Fourth Amendment, but the right to
privacy as well.

IV.​ ​Conclusion

In conclusion, the question presented before the Court today is vital to the preservation
of the rights and liberties of the American people. The answer to the question, “With the
protections given by the Fourth Amendment, and an amalgamation of other rights
outlined in the Constitution, does the warrantless collection of metadata by a
government authority without the correct warrant for search, including location
information, from cellphone towers violate privacy rights?” is absolutely yes. Without
meeting the requirements needed to obtain the necessary level of scrutiny for probable
cause, the attainment of metadata is unlawful.
Furthermore, it directly interferes with the individual citizen’s right to privacy as implied
through a penumbra of the First, Fifth, and Ninth Amendments taken together. The
freedom of association, right to not self-incriminate, and the caveat that the rights not
enumerated in the Bill of Rights and the Constitution are retained by the American
people directly implies a right to privacy, which can be seen in legal precedent to justify
the right to bodily autonomy over the past fifty years and more diversely over the past
century. Therefore, this consul finds that the lack of warrants concerning metadata is
appalling, and a titanic gap in current legislation. Along with Justice Alito, we hope to
find legislative action in the future that directly outlines the specific warranting process
for metadata to make the boundaries of the collection of this data enumerated.