Stephen Treglia recently wrote a piece for the New York Law Journal. The link to the decision can be found here:
I must confess I do not agree with some of what he wrote, or at least implies, with respect to “real-time” CSLI. In the article, he specifically writes:
“But possibly the greatest anomaly can be found in the Carpenter decision itself. The majority specifically noted that law enforcement still has the ability to access future CSLI via a 2703d order. What that means then is that it is permissible for law enforcement to capture live, real-time CSLI via a judicial decree that only requires a finding of reasonable grounds of relevancy and materiality to an ongoing investigation whereas historical CSLI, which law enforcement did nothing to generate or record, can only be secured by a judicial finding of probable cause.
This construct seems completely contrary to the SCA matrix of requiring greater judicial oversight as law enforcement climbs the ladder seeking more invasive electronic data from subpoenaing “subscriber records” to 2703d orders for “transactional records” to a search warrant for “stored communications” to an eavesdropping warrant for “real-time communication interception.” The Carpenter decision now splits “transactional records” into “historical” and “real-time” and requires greater judicial approval of a search warrant between the SCA ladder rungs of “subscriber records” and “real-time” CSLI. That, somehow, doesn’t seem quite right.”
That isn’t right, because that’s not what the Court said. The Court specifically declined to reach the issue of “real-time” CSLI because that issue was not before the Court. The Court in no way created Treglia’s described dichotomy in the Carpenter decision.
The Court did state that “if law enforcement is confronted with an urgent situation, such fact-specific threats will likely justify the warrantless collection of CSLI. Lower courts, for instance, have approved warrantless searches related to bomb threats, active shootings, and child abductions. Our decision today does not call into doubt warrantless access to CSLI in such circumstances. While police must get a warrant when collecting CSLI to assist in the minerun criminal investigation, the rule we set forth does not limit their ability to respond to an ongoing emergency.”
It’s the “ongoing emergency” or exigent circumstance, that Mr. Treglia is leaving out of his analysis regarding “real-time” CSLI. If there’s an exigent circumstance, a judge can authorize real-time CSLI through a court order authorized by Section 2703 of the Stored Communications Act.
The way I read Carpenter, if there is no such emergency, then the order without a warrant is simply not worth the paper its written on and defense counsel has Carpenter to use to suppress real-time CSLI.
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