A study of smartphone users found that seventy-nine percent of respondents have their phones on or near them for almost their entire waking day. By 2017, an estimated 67.8% of the U.S. population will use smartphones. The increased adoption of smartphones changed the detail and frequency of how people interact with each other and within their communities, yielding intimate information about the individual user’s relationships. In June 2013, Edward Snowden, a former National Security Agency (NSA) contractor, became notorious for leaking classified information detailing a government program to collect cell phone metadata, also known as transactional information, and location information on virtually every U.S. citizen. Transactional information is data individual users generate when their cell phones interact with outside entities, including businesses, organizations, and websites. Snowden admits that he leaked the information to start a public debate about privacy and the morality of the government collection program. The leaked information, however, may have created a new problem for cell phone service providers in forcing them to afford their subscribers constitutional privacy protections, a role usually reserved to the state.
This Note will examine the history of the state action doctrine and the privacy protections afforded by the Constitution. In Part II, this Note will explore the purpose behind the state action doctrine’s construction. Next, this Note will describe the test for applying the state action doctrine to private conduct and identify exceptions to state action. This Note will then explain cell phone carriers’ technology, infrastructure, and data collection practices. This Note will also discuss the applications of location data and will identify laws governing data collection of individual subscribers. Also in Part II, this Note will consider the privacy protections guaranteed by the Constitution and the doctrinal approaches to analyzing privacy rights. This Note will then argue why the state action doctrine must apply to cell phone carriers. Finally, this Note will argue cell phone subscriber location data deserves constitutional protection under the Fourth Amendment.