Carpenter v. United States, 201 L.Ed. 2d 507 (2018) decided on June 22, 2018, is probably the most important Fourth Amendment case involving new crime fighting cyber surveillance technology, that is, historical cell site location information (CSLI), to reach the high court in many years. Last December, in the spirit of the season, your writer mused in this column that Weaver’s spirit, that is People v. Weaver, 12 N.Y.3d 433, 458 (2009), requiring that the government obtain a search warrant to utilize GPS location information except in rare circumstances, was discernible during the oral argument in Carpenter. The government obtained Timothy Carpenter’s historical CSLI through a court order on less than probable cause pursuant to 18 U.S.C. 2703 (d) of the Stored Communication Act from defendant’s cellular telephone provider cataloging defendant’s movements over 127 days. The CSLI was used to fix defendant’s movements and thereby corroborate witness accounts of defendant’s involvement in a series of robberies.

CSLI assists in determining the general locations of a target cellular telephone, and may also aid in identifying the suspect using the phone. See also, People v. Hall, 86 A.D. 3d 450 (1st Dept. 2011), lv den 19 N.Y. 3d 961 (2012) cert den 133 S. Ct. 1240 (2013). The CSLI technology used in Carpenter was similar to the GPS technology that was used in Weaver. For as was opined in Carpenter, “[m]uch like GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic, and effortlessly compiled.” Moreover, “…[t]he accuracy of CSLI is rapidly approaching GPS-level precision.” Now that the initial dust raised by the decision in Carpenter, requiring the government obtain a search warrant to obtain historical CSLI, has settled, we may discuss possible consequences on other crime fighting cyber surveillance tools.

Privacy and Security