Changing Privacy Laws in the Digital Age: Carpenter v. United States

In an age of ever-increasing reliance on digital technology, concerns about security and privacy have become increasingly relevant. When such technology has been used by individuals to coordinate and orchestrate criminal acts, courts been faced with the challenge of balancing these individuals’ privacy rights with law enforcement’s investigative goals. For example, in 2014, the United States Supreme Court held that the warrantless search of a cell phone obtained during an arrest was unconstitutional.  On the other hand, in February 2016, a California District Court ordered Apple to assist the FBI in “unlocking” the iPhone of one of the San Bernardino shooters.

The Supreme Court now turns to the issue of privacy and cell site location information, or “CSLI”. In June 2017, the Court granted certiorari in the case of Carpenter v. United States to consider the issue of whether law enforcement can obtain historical records containing the location of a cell phone user from wireless providers without a search warrant. The Court will hear oral arguments in the case tomorrow, on November 29, 2017.

The Lower Courts’ Rulings

This case comes to the Supreme Court on appeal from a ruling in favor of the Government in the Sixth Circuit Court of Appeals. United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016). Timothy Carpenter and Timothy Sanders were convicted of nine armed robberies at Radio Shack and T-Mobile stores in the Detroit area. At trial, the government relied on business records obtained from wireless carriers that indicated that the defendants’ cell phones were used within a two-mile radius of each robbery at the time the robberies occurred. The government was able to obtain these records under the Stored Communications Act, under which the government can seek a court order for CSLI if “specific and articulable facts showing that there are reasonable grounds to believe that the contents . . . are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d) (2009). Carpenter and Sanders argued, at trial and on appeal, that the Fourth Amendment requires the government to obtain a warrant and thus demonstrate probable cause rather than just “reasonable grounds” in order to obtain such CSLI.

However, the Sixth Circuit affirmed the convictions. The Circuit Court looked to Katz v. United States, 389 U.S. 347 (1967) and Smith v. Maryland, 442 U.S. 735 (1979), among others, to determine that the petitioners’ Fourth Amendment challenge was invalid because there was no expectation of CSLI privacy. It distinguished this case from United States v. Jones, 565 U.S. 400 (2012), which held that the warrantless installation of a GPS tracking device on an individual’s car was a Fourth Amendment violation, on its facts, asserting that GPS data was far more specific as to the location of the individual and that CSLI was obtained through a third party, which cut against the expectation of privacy.

Looking Forward

Major wireless carriers in the United States receive thousands of such cell-site location data requests from law enforcement every year and grant the majority of them. If the Supreme Court were to reverse the ruling of the Sixth Circuit, it would affect not only this case, but also the practice of allowing CLSI to be obtained without a warrant that is common in several federal circuits. Such a decision could also signal that decades-old laws respecting searches and seizures and privacy rights may need reevaluation in the digital age.  Justice Sotomayor suggested that this may indeed be the case; in her concurrence in Jones, Justice Sotomayor asserted that the expectation of privacy standard from Smith may be “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

It is therefore not surprising that organizations and individuals are weighing in on both sides of the case. For example, the American Civil Liberties Union, which represents Carpenter, has asserted that “[t]he Founders recognized that giving the state arbitrary search power harms ‘the people’ in ways that go beyond the indignity of specific trespasses.” Furthermore, at least twenty amicus curiae briefs have been filed since the Supreme Court granted certiorari. In what some find to be a surprising move, Verizon has joined the ranks of Microsoft, Google, Apple, and other technology giants in an amicus brief, which asserts, “[a]lthough amici do not take a position on the outcome of this case, they believe the Court should refine the application of certain Fourth Amendment doctrines to ensure that the law realistically engages with Internet-based technologies and with people’s expectations of privacy in their digital data.”  It is clear that no matter the outcome of Carpenter, privacy concerns in an ever-evolving, technologically-dependent society are not going away.  Whether during this term or in the future, courts will need to assess if and how our privacy laws and fundamental constitutional values must evolve with changing technology.

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