Beyond Carpenter - A Legislative Framework for Mobile Location Privacy
A new chapter of federal law could bring clarity to the government’s acquisition of mobile location data.
In Carpenter v. United States, the Supreme Court held that the Fourth Amendment requires a warrant for compelled disclosure of historical cell-site location information. But Carpenter left unresolved critical questions: What about real-time collection? Direct collection by the government? Geofencing and tower dumps? Government purchases from data brokers? Duration thresholds? Emergency exceptions?
This report offers seven principles for updating the Electronic Communications Privacy Act. Applying them to location data, it argues that merely codifying Carpenter would be insufficient. Instead, it proposes a new freestanding chapter of Title 18—Chapter 120—comprehensively regulating government acquisition of mobile location information.
Drawing on the Wiretap Act, the proposed chapter establishes a warrant requirement for all government acquisition of mobile location data, a two-stage judicial process for non-individualized searches like geofencing and tower dumps, emergency exceptions, a statutory suppression rule, minimization requirements, and notice provisions. The report includes proof-of-concept legislative text with a section-by-section analysis.
This paper was published as part of a series marking the 40th anniversary of the Electronic Communications Privacy Act. View the paper series here.
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