Near Perfect Surveillance
On June 22, 2018, the Supreme Court of the United States decided the case of /Carpenter v. United States/. The issue at hand was whether the government has permission to obtain cell phone data—specifically location data—from a third-party provider in the course of a criminal investigation without obtaining a warrant (1). The Court ruled in favor of the petitioner, Timothy Carpenter, ruling that his Fourth Amendment rights were violated when the government gained access to his cell phone location data without a warrant. The ruling established for the first time that the government, in order to obtain cell phone location records from a third party, must act under a warrant based upon probable cause. Widely seen as a landmark ruling, the Court’s decision in /Carpenter/ provided a needed update to its interpretation of the Fourth Amendment and the right to privacy in the digital age.
In late 2010 and early 2011, a group of individuals, working together, carried out a string of armed robberies of RadioShack and T-Mobile stores in Michigan and Ohio. When four of the individuals suspected of participating in these robberies were arrested, one confessed and provided the FBI (the FBI was involved because this was a federal criminal investigation, as the robbery ring crossed state lines) with his cell phone and the cell phone numbers of the other participants. With that information in hand, the FBI requested and received, a court order granting them access to the cell phone records of the remaining suspects—including those of Timothy Carpenter. The data obtained from MetroPCS and Sprint, per the court order, included the dates and times of calls as well as the approximate locations where calls were made (2). Altogether, the government ended up with 127 days of Carpenter’s call location information—information that effectively allowed the government to track Carpenter’s movements during that time period (3). Carpenter’s call history indicated he was within a two-mile radius of four of the robberies at the times they were committed. In light of this evidence, the government charged Carpenter with six counts of robbery and six counts of carrying a firearm during a federal crime of violence (4).
The Fourth Amendment to the United States Constitution guarantees “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” unless the government is acting on a specific warrant based upon probable cause. (5). As noted above, the FBI used a simple court order, rather than a search warrant, to obtain Carpenter’s cell phone records (3). A warrant would have required the government to demonstrate probable cause, due to the Fourth Amendment’s prohibition of unreasonable searches and seizures without a warrant (5). But the court order required a lower standard, since it was granted under a federal statute known as the Stored Communications Act, 18 U.S.C. 2703(d), which only applies to third-party internet service providers. This act allows the government to require the disclosure of certain telecommunications records from third party providers when “specific and articulable facts show that there are reasonable grounds to believe that the contents [of those records] are relevant and material to an ongoing criminal investigation” (1). In this line of reasoning, those one does not have a reasonable expectation of privacy of those records, since they have voluntarily been handed over to a third party. This line of reasoning places those records outside of Fourth Amendment protection.
Prior to his trial, Carpenter moved to suppress the cell phone location data, arguing it constituted an unlawful search, since it was obtained without a warrant based on probable cause. Though the government’s acquisition of those records was legal under the Stored Communications Act, Carpenter argued that it violated the Fourth Amendment. The trial court denied the motion. As a result, the cell phone data was used against Carpenter at trial, along with the testimony of his accomplices. Carpenter was convicted and sentenced to over 100 years in prison.
On appeal, the U.S. Court of Appeals for the Sixth Circuit affirmed Carpenter’s conviction on the grounds that he lacked a reasonable expectation of privacy of his cell phone location data because he voluntarily gave that information to a third party: his cell phone provider. In reaching its decision, the Sixth Circuit relied on Supreme Court precedent that established that while there is a reasonable expectation of privacy in the contents of a given communication, there is no such expectation of privacy for information about that communication (e.g. identity of sender and receiver, time of communication, location of communication), since that non-content information is voluntarily handed over to a third party (2).
Following the Sixth Circuit’s affirmation of Carpenter’s conviction, the case was appealed to the Supreme Court. Faced with the question of whether the warrantless search of cell phone records that include location data violates the Fourth Amendment, the Court ruled 5-4 that the government did violate Carpenter’s Fourth Amendment rights (4). The majority wrote that existing precedent regarding the expectation of privacy of third party data was ill-equipped to guide the court in the digital age. The ubiquity of smartphones demanded a reassessment of previous Fourth Amendment interpretations that were issued to settle questions pertaining to very different technologies.
As the majority wrote, even though cell phone location data has been handed over to a third party, government access to it represents a far greater intrusion than did government access to third party data at the time the relevant precedents were issued. In his majority opinion, Chief Justice Roberts wrote that “When the government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user” (4). The smartphone’s ubiquity and ceaseless collection of data about its user also calls into question the voluntariness of a smartphone user’s transfer of data to a third party. While a smartphone user may be aware of the fact that they are handing data over to a third party, their device’s ceaseless monitoring of their location may well be beyond their consent (2). The majority concluded by writing “We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information” (4). As a result of this ruling, government entities must now obtain a search warrant based on probable cause in order to examine cell phone location data.
While consequential, the Court’s ruling in /Carpenter/ is narrow; it applies only to cell phone location data (3). It remains to be seen then how the Court may deal with future cases involving the government’s warrantless search of third party digital information. In the absence of a broader ruling that interprets the Fourth Amendment as it pertains to digital information held by a third party, it is possible that institutional reforms could be made that will prevent future violations of defendants’ rights. For instance, it is conceivable that the third-party doctrine could be rendered superfluous if consumers retained ownership of their data. Under such a system, consumers would grant providers access to, but not ownership of, their data. When one grants a contractor access to one’s home, one is not handing over their home to a third party, from whom the government may now seek permission to search the home; rather, one is entering into a business relationship with a service provider that requires granting access, but not ownership. It seems personal data could be viewed in an analogous way: one could retain ownership of the electronic records generated by a device in one’s possession, while granting a service provider access to, but not ownership of, that data.
/Carpenter v. United States/ serves as a potent reminder that the rise of Big Data and mobile technology may render some Fourth Amendment precedents archaic, and that the increasing extent to which we live our lives online and on our devices may render us vulnerable to government overreach. However, it can also be seen as reminder of the durability of the basic principles articulated in the Constitution, and their importance to maintaining a just society.
By Contributor John Chapman
2. Sorkin, A. (2018). In Carpenter, the Supreme Court Rules, Narrowly, For Privacy. Retrieved from https://www.newyorker.com/news/daily-comment/in-carpenter-the-supreme-court-rules-narrowly-for-privacy
3. Liptak, A. (2018). In Ruling on Cellphone Location Data, Supreme Court Makes Statement on Digital Privacy. Retrieved from https://www.nytimes.com/2018/06/22/us/politics/supreme-court-warrants-cell-phone-privacy.html
5. U.S. const. amend. IV