In a landmark Fourth Amendment case, the U.S. Supreme Court ruled that digital is different. A cross-practice team from our National Security & Digital Crimes and Cybersecurity Preparedness & Response teams parse the narrow ruling that brings searches and seizures into the 21st century.
- The third-party doctrine spelled out in U.S. v. Jones
- Digital information is more “encyclopedic” than a pen register
- The significance and implications of Carpenter v. U.S.
The Supreme Court’s recent decision in Carpenter v. United States continues to generate interest more than a month after its release. While the Court proclaimed its holding as narrow, its unprecedented recognition of an individual’s privacy interest in data held by third parties could signal important changes in privacy more generally.
Background
Timothy Carpenter was convicted for his participation in a series of armed robberies.[1] While investigating Carpenter, law enforcement obtained court orders for cell-site location information under the Stored Communications Act (SCA). The SCA requires a showing of “specific and articulable facts … that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”[2]
The court orders requested cell-site location information for periods of 127 days from one cell phone carrier and seven days from another.[3] The government’s expert witness at Carpenter’s trial explained that cell phone carriers log certain information each time a cell phone accesses the wireless network. Using this information, the government produced “maps that placed Carpenter’s phone near four of the charged robberies.”[4]
Carpenter argued that the government’s seizure of his cell-site location information violated the Fourth Amendment because he had a reasonable expectation of privacy in the cell-site location information and because the government had not obtained a warrant supported by probable cause.[5]
Legal Landscape
The Fourth Amendment protects against “unreasonable searches and seizures” of “persons, houses, papers, and effects.” In Katz v. United States, 389 U.S. 347, 351 (1967), the Supreme Court extended this protection to an individual’s “reasonable expectation of privacy,” beginning a lengthy line of cases testing the boundaries of privacy.
According to the majority opinion, Carpenter sits at the intersection of two sets of Fourth Amendment cases. The first, beginning with United States v. Jones, 565 U.S. 400 (2012), recognized an individual’s expectation of privacy in a long-term surveillance of physical location and movement. Before Jones, the Court had held that augmented visual surveillance, involving use of a beeper attached to a vehicle and resulting in the tracking of an individual’s movements, did not constitute a search.[6] The Supreme Court held in Jones that the placement of a GPS tracking device on a car was a trespass, and thus the collection of 28 days of location data using that device was a Fourth Amendment search.[7] More importantly, a collection of five concurrences in Jones agreed that “longer term GPS monitoring,” in certain circumstances, “impinges on expectations of privacy.”[8] It is this agreement among the concurrences that forms the first pillar of the Court’s holding in Carpenter.
The second set of Fourth Amendment cases relates to what is commonly known as the third-party doctrine. That long-standing doctrine holds that an individual generally “has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”[9] The Court has applied the third-party doctrine in contexts as varied as bank records and pen registers (that is, records of dialed phone numbers). For example, in United States v. Miller, 425 U.S. 435 (1976), the Court rejected a Fourth Amendment challenge to the collection of bank records partly because the records were not confidential and contained information that was exposed to the bank as part of the bank’s business. Similarly, the Court has rejected a challenge to the use of a pen register because the dialed numbers are used by the telephone company.[10]
Court’s Decision
The Supreme Court, by a 5–4 majority, agreed with Carpenter and held that the government’s acquisition of cell-site location information covering a period of seven days or more was a search under the Fourth Amendment. In doing so, the Court for the first time recognized an individual’s reasonable expectation of privacy in information generated and maintained by third parties in the course of business. The Court characterized the cell-site location information as “detailed, encyclopedic, and effortlessly compiled.”[11] The Court emphasized that a comprehensive record of an individual’s movements was sufficiently different...
