Cell Phones Are Orwell's Telescreen: The Need for Fourth Amendment Protection in Real-Time Cell Phone Location Information

Courts are divided as to whether law enforcement can collect cell phone location information in real-time without a warrant under the Fourth Amendment. This Article argues that Carpenter v. United States requires a warrant under the Fourth Amendment prior to law enforcement’s collection of real-time cell phone location information. Courts that have required a warrant prior to the government’s collection of real-time cell phone location information have considered the length of surveillance. This should not be a factor.

The growing prevalence and usage of cell phones and cell phone technology, the original intent of the Fourth Amendment, and United States Supreme Court case law are the deciding factors. Research has shown that a cell phone can be located through its basic functioning as it automatically connects to a growing number of cell sites. The fact that nearly all Americans have a cell phone and carry it on their person makes a cell phone’s location that of the phone’s user, essentially acting as a monitoring device. Permitting law enforcement to collect this location information in real-time without a warrant under the Fourth Amendment violates the principles of the Amendment, which is to curb arbitrary government power.

Twenty-first century United States Supreme Court jurisprudence furthers this argument. The Court recently found in Carpenter v. United States that individuals have a reasonable expectation of privacy in their physical movements as captured through historical cell cite location information (CSLI). The same rationale in deciding Carpenter also applies to the real-time CSLI and GPS data emanating from one’s phone: neither United States v. Knotts nor the third-party doctrine are applicable to real-time cell phone monitoring.