“Is there anything in your house that you would prefer the world not know that you have?  Have you spoken to anyone within the last month that you would prefer the world not know, not necessarily the content of the conversation, but that you even had a conversation with that person?”

This is how Patrick Joyce, a noted criminal defense attorney in New York, begins his recent Lawline program, Defining Fourth Amendment Protection in The Electronic Age.

As in many areas of law (hey there, cybersecurity!), the jurisprudence around Fourth Amendment protections has often been slow to keep up with new technology.  The first iPhone was debuted less than a decade ago, and today more than 75% of Americans have a smartphone – which for most of us, means that we are always online and connected.  This means that the government has more ways of keeping track of us than any other time in history – and the limits on the Constitutionality of these searches are not always clear.

In June, SCOTUS granted cert in Carpenter v. United States, a case which raises the issue of whether the warrantless search and seizure of cell phone records (which reveal the location and movements of the phone’s user) violates the 4th Amendment.  The government did not seek a warrant for cell site information on the Defendant;  instead, they applied to a magistrate judge for an order under the Stored Communications Act, which allows the government to obtain records (but not the “content of communications”) by showing “specific and articulable facts” demonstrating reasonable grounds to believe that the information is “relevant and material to an ongoing criminal investigation.”

These types of applications are made every day – cell phone providers receive thousands of requests a year for cell site information – so if SCOTUS decides that a probable cause warrant is required in these cases, the impact would be far-reaching.

In his program, Mr. Joyce reviews the Carpenter case – including some lower court cell site decisions – noting that the replacement of the late Justice Scalia (a staunch conservative jurist, but whose 4th Amendment jurisprudence tended towards a libertarian analysis) with Justice Gorsuch (a conservative jurist whose record on civil liberties is sparse) makes it difficult to predict the outcome of the case.

In addition to Carpenter, Mr. Joyce discusses public opinion on NSA surveillance after the Snowden leak, the issue of whether you really “assume the risk” that your cell phone information will be disclosed when you sign your provider’s service contract, and exactly what kind of information can be gathered from cell phone records.  Since there’s at least a 50% chance that you’re reading this article on your phone, it’s well worth your time to check out this course.