United States: Hands-Free Georgia Act And Restriction On Police Power To Obtain Cellphone Data

On July 1, 2018, Georgia's new distracted driving law went into effect.  The new law is officially called the "Hands-Free Georgia Act" and it includes important new provisions relating to the use of "wireless telecommunications devices"i while driving a motor vehicle in Georgia.  The Act seeks to curb the use of cell phones while driving by requiring the use of blue tooth or hands-free calling.  As summarized in our article from last month, the long and short of it is that you are not allowed to hold your phone while driving.

Many people may be curious to know how the new law will be enforced.  For example, how will law enforcement officials be able to show that you were actually holding your cell phone?  Will police make it a practice to ask to see your phone so they can confirm you were making a call, texting, emailing, (or worse yet) watching a movie, when you were pulled over?

The Fourth Amendment to the Constitution of the United States states:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

In a well-publicized case from 2014, Riley v. Californiaii, the U.S. Supreme Court in a unanimous decision held that law enforcement officials violated the Fourth Amendment by searching a cell phone without a warrant. After the ruling, smart phones and other electronic devices were no longer in the same category as wallets, briefcases, and vehicles — all currently subject to limited initial examination by law enforcement without a warrant. "Modern cell phones are not just another technological convenience," Chief Justice John Roberts wrote in a unanimous decision.iii "With all they contain and all they may reveal, they hold for many Americans 'the privacies of life.' The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought."iv

With respect to the Hands-Free Georgia Act, there is no law prohibiting a police officer from asking to see your phone, but that does not mean they have the right to see it.  If an officer asks to see your phone, you do not have to hand it over.  Pursuant to the Fourth Amendment, you can decline, unless and until they get a warrant signed by a Judge or Magistrate upon a showing of good cause.

On June 22, 2018, in a case styled Carpenter v. United States, the U.S. Supreme Court expanded on its prior ruling shielding the privacy of cell phones by holding that law enforcement officers cannot obtain data from your cell phone provider to track your movements without obtaining a warrant.v

Cell phones continuously connect to a set of radio antennas called "cell sites." Each time a phone connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI). Using CLSI, authorities can string a set of time-stamped data points together and track a person's movements.

The facts of the Carpenter case center around an arrest of four men suspected of armed robberies at a series of Radio Shack and T-Mobile stores in Detroit.  One of the men confessed that the group had robbed nine different stores in Michigan and Ohio.  Using cell-site records obtained from MetroPCS and Sprint, the Government was able to use CSLI to place the alleged ringleader, Carpenter, near four of the charged robberies. Altogether the Government obtained 12,898 location points cataloging Carpenter's movements—an average of 101 data points per day.vi  In the Government's view, the location records clinched the case: They confirmed that Carpenter was "right where the . . . robbery was at the exact time of the robbery."

Carpenter argued that the Government's seizure of the records violated his Fourth Amendment rights because the records had been obtained without a warrant supported by probable cause.

The lower court sided with the Government, relying on the third party doctrine and finding that Carpenter did not have a reasonable expectation of privacy in the location information collected by the FBI because he had shared the information with his wireless carriers.  The third party doctrine is based on the idea that a person has a lower expectation of privacy in information it shares with another.

In a 5-4 vote, the U.S. Supreme Court overturned the lower court's ruling and found that police must get a warrant supported by probable cause before collecting CSLI.vii  The Supreme Court found the third party doctrine inapplicable because

"Cell phone location information is not truly "shared" as one normally understands the term. In the first place, cell phones and the services they provide are "such a pervasive and insistent part of daily life" that carrying one is indispensable to participation in modern society.  Second, a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the part of the user beyond powering up. Virtually any activity on the phone generates CSLI, including incoming calls, texts, or e-mails and countless other data connections that a phone automatically makes when checking for news, weather, or social media updates. Apart from disconnecting the phone from the network, there is no way to avoid leaving behind a trail of location data. As a result, in no meaningful sense does the user voluntarily "assume[] the risk" of turning over a comprehensive dossier of his physical movements."

The Court concluded that CSLI "implicates privacy concerns far beyond" what the court considered in earlier cases, when the government could only see your business records or the phone numbers you dialed on a landline. "In light of the deeply revealing nature of CSLI," Roberts held, "its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection."viii

The Supreme Court's rulings have shown it is serious about protecting an individual's right to privacy.  Law enforcement officials tasked with enforcement of Georgia's new Hands-Free Georgia Act must balance a person's right to privacy in their cell phone data with the Georgia Legislature's goal of reducing a serious problem, distracted driving.

Footnotes

i The Act defines a "wireless telecommunications device" as "a cellular telephone, a portable telephone, a text messaging device, a personal digital assistant, a stand-alone computer, a global positioning system receiver, or substantially similar portable wireless device that is used to initiate or receive communication, information or data.  Such term shall not include a radio, citizen band radio, citizens band radio hybrid, commercial two-way radio communication device or its functional equivalent, subscription based emergency communication device, prescribed medical device, amateur or ham radio device, or in-vehicle security, navigation, or remote diagnostic system."

All types of cell phones, smart phones, flip phones, etc., are included in the definition. Further, laptop computers, tablet computers/iPads, and GPS systems which are not "in-vehicle" are also included in the definition. However, some more old fashioned forms of electronic communications such as CB radios and systems which are "in-vehicle" are not included in the definition.

ii 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014).

iii Id. at 2494.

iv Id. at 2494-2495.

v Carpenter v. United States, 585 U.S. __ (2018), see https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf (last visited 6/26/2018).

vi Id.

vii The authorities are not limited by the warrant requirement in an ongoing emergency, such as the need to pursue a fleeing suspect or protect individuals who are threatened with imminent harm.  Id.

viii Id.

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