Conducting Surveillance and Collecting Location Data in a Post-Carpenter World, Part II

This post is the second in a series examining the impact of Carpenter v. United States, 585 U.S. ___, 138 S.Ct 2206 (2018) on electronic surveillance and the obtaining of location and other types of information from third parties. The first post in this series summarized post-Carpenter decisions relating to surveillance by pole camera and tower dumps. This post examines post-Carpenter rulings on the obtaining of real-time surveillance information through satellite-based Global Positioning System data (GPS) or cell site location information (CSLI). The last post in this series will examine the use of cell site simulators and the obtaining of other information about a person’s on-line activities or accounts from third parties. [Author’s Note:  If you have been paying close attention, you will know that I initially planned to cover all five categories in two posts. There was simply too much material. I will address cell site simulators and other third party data in a subsequent post.] Real-time surveillance. The information obtained by the government in Carpenter was historical CSLI.  Carpenter was not being surveilled at the time the robberies occurred. Instead, after he was identified as a suspect, the government obtained CSLI from the companies that provided service to his mobile phone. Those records showed that Carpenter was right “where the . . . robbery was at the exact time of the robbery.” 585 U.S. at ____; 138 S.Ct. at 2213. In many cases, however, the government may wish to proactively monitor a known suspect by having a wireless communications [...]