Supreme Court Strengthens Fourth Amendment Digital Privacy in Carpenter

Last week, the Supreme Court weighed in on privacy rights in the digital age in a blockbuster 5-4 split decision in Carpenter v. United States to provide Fourth Amendment protections to location data possessed by cell phone carriers known as cell-site location information (CSLI). The decision is likely to be followed by other privacy cases to refine the new boundary of privacy, as well as another hot privacy issue, the ability of the government to compel a person to unlock an encrypted device.

Chief Justice John Roberts delivered the opinion of the Supreme Court in favor of the defendant, creating an exception to the once seemingly bright-line rule developed in United States v. Miller (1976) and Smith v. Maryland (1979) that there is no legitimate expectation of privacy in information voluntarily turned over to a third party. Justices Ginsburg, Breyer, Sotomayor and Kagan joined in the opinion. The four dissenting opinions were written by Justices Kennedy, Thomas, Alito and Gorsuch.

The facts of Carpenter are relatively simple. The defendant was convicted, following a trial, based on information obtained pursuant to a warrant served on his cell phone carriers that resulted in location data (CSLI) placing him in the vicinity of the crimes. He argued prior to trial that the cell-site location data provided was an illegal seizure obtained without probable cause in violation of the Fourth Amendment.

The Sixth Circuit upheld the lower court decision to allow the evidence because he did not have a reasonable expectation of privacy in the location information because he voluntarily shared it with his wireless carriers. The Supreme Court reversed.

The case turns in part on the question of how to apply the Fourth Amendment, which protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures …”, in the digital age.

The case was of vital importance for privacy because it could have set a legal precedent that enabled government access to almost every piece of unencrypted information created by third-parties about users over the internet or their phones without a showing of probable cause.

Chief Justice Roberts’ majority opinion contends that the ability of the government to get a person’s location data is part of a seismic shift in digital technology that opens up the possibility of near perfect government surveillance not previously possible. He declared the use of historical cell-site records to be similar to allowing the government access to the data from an ankle monitor worn by every person for the last five years.

Of course, this amount of data collection should surprise no one that has been following the Facebook – Cambridge Analytica scandal and GDPR this year. However, the majority in Carpenter declared government access to widespread location data beyond the expectations of society, which has long expected that law enforcement could not track their every movement.

In order to distinguish the Court’s past precedent in Miller and Smith, which established that there is no reasonable expectation of privacy in a third-party’s records, the Chief Justice declared that the detailed and comprehensive record of a person’s movements created by cell-site records was a “quantitatively different category” than the previous information covered by the third-party doctrine (telephone number and bank records).

Chief Justice Roberts was also unwilling to say that powering up a cell phone was a sufficient affirmative act to justify that level of government tracking. He contends that a person did not voluntarily assume the risk of comprehensive tracking of his physical movements when he bought and turned on the phone, which has become a staple of modern society.

The majority opinion is conveyed as a limited one and explicitly allows police to obtain location data where a warrantless search is typically permitted – such as the exigencies of pursuing a fleeing suspect, protection individuals from imminent harm, or to prevent the imminent destruction of evidence.

There will be much to work out by the lower courts and the Court in the future, as they struggle to apply the Fourth Amendment in the digital era.

There are four dissenting opinions in Carpenter, although the lineup and outcome could look very different in the next privacy case. Justice Kennedy, in the minority, has just announced his retirement at the end of July, meaning that President Trump will be nominating a new conservative candidate for the Court. Justice Gorsuch, also in the minority, may also be swayed to protect against such as a matter of positive law.

Nevertheless, the limitations placed on the majority opinion by Chief Justice Roberts open up the possibility that he will vote along with the conservatives on the Court in the next important privacy case as they elaborate upon a different theory than the Katz reasonable expectation of privacy standard.

Here are brief summaries of the dissenting opinions:

Justice Kennedy

Justice Kennedy, who wrote a dissent joined by Justice Thomas and Justice Alito, argued that the location data is simply a business record held by a third-party and not protected by the Fourth Amendment. Justice Kennedy further contended that the defendant had no property right in the records and thus it was not subject to the Fourth Amendment protections against unreasonable searches and seizures.

Given the rapid evolution of technology, Justice Kennedy would defer to the legislative judgments of Congress rather than create constitutional barriers. Kennedy contends that Miller and Smith extend to the modern-day equivalents of an individual’s own “papers” or “effects” when held by a third party, but Carpenter does not provide such a case. Instead, he sees it as an arbitrary six-day cutoff on a reasonable means of investigating serious crimes.

Justice Thomas

Justice Thomas, in his dissent, argues that the reasonable expectation of privacy test first articulated by Justice Harlan in Katz v. United States (1967)(concurring opinion) is flawed.

Justice Alito

Justice Alito’s dissent contends that the Fourth Amendment is not implicated because (1) a judicial order for a private party to search their records does not require probable cause; and (2) there is no right to object to the search of a third party’s property.

Justice Gorsuch

Justice Gorsuch dissents because of his belief that the Katz test is unworkable and needs to be discarded in favor of another approach. He seemed willing to listen to an alternative theory based in positive law, which contends that a court should ask whether the government has engaged in an investigative act that would be unlawful for a similarly situated private person or entity to perform. However, he found that these sort of arguments had been forfeited by the defendant in favor of an application of Katz.

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