Maine Court Weighs Carpenter Application to Real-Time Cellphone Location Data

Maine Supreme Court justices asked if people have an expectation of privacy of real-time cellphone location information, in oral argument Tuesday on how the U.S. Supreme Court’s decision in Carpenter v. U.S. applies to Maine v. O’Donnell. It’s one of several state court cases that may determine the reach of the Supreme Court’s 5-4 summer decision that government collection of at least seven days of cellsite location information (CSLI) is a Fourth Amendment-protected search, requiring warrants (see 1810170043). “The real question is whether each of us -- most of us who I assume have a cellphone -- have a right to privacy in where we are that can be violated if there is no warrant to ping that phone,” said Chief Justice Leigh Saufley. The state conceded the officer should have obtained a warrant, but a lower court said the evidence was admissible, noted Justice Ellen Gorman. “So what remedy does Mr. O’Donnell or someone in his circumstances have when the state treads on his rights?” The Supreme Court found historical CSLI data to be sensitive and revealing information, and the automatic nature of such data’s exposure made it not subject to the third-party doctrine, which says people who voluntarily give information to phone companies and other third parties lack reasonable expectation of privacy, argued appellant attorney Adam Sherman: O’Donnell didn’t volunteer his cellphone information. A 2016 Maine Supreme Court ruling held real-time tracking of a cellphone is more troublesome to someone’s privacy interest than historical information, he said. Unless there are exigent circumstances, a warrant is required, he said. Maine counsel Paul Rucha disagreed: “Carpenter does not explicitly control this case and it does not address a limited request for records for CSLI of less than seven days. Since Carpenter does not apply, this court must determine whether to expand the Maine Constitution beyond federal protection or determine this case under Maine statutory law.” Rucha argued the U.S. Supreme Court’s concern with historical data had to do with its breadth, whereas real-time information is a request for a person’s information at one point. Rucha warned not to make it harder to find missing children or people who call 911 on a cellphone. Saufley said exigent circumstances would take hold and allow a warrantless search to find a missing kid.