With Carpenter, Supreme Court Could Change the Privacy Landscape

On June 5th, the Supreme Court agreed to review a case that will have incredible impact on Americans’ privacy rights. That case is Carpenter v. United States, which questions whether the 4th amendment protects against warrantless searches of historical cell-site location information (CSLI). In considering this case, the Court will have to decide whether Carpenter’s claim meets the standard established in Katz v. U.S. for when the government is required to obtain a warrant before conducting a search pursuant to the 4th amendment right to privacy: whether Carpenter has a “reasonable expectation of privacy” in his CSLI.

Timothy Carpenter was under investigation for a series of armed robberies that occurred between December 2010 and March 2011 in Michigan and Ohio. In an effort to place Carpenter in close proximity to the robberies, the government obtained his historical CSLI without obtaining a warrant from a judge based on probable cause. The government received 127 days of Carpenter’s cell phone records which it used as evidence against him. Those records were instrumental in obtaining convictions against Carpenter for committing six robberies.

The government argued that Carpenter’s CSLI was subject to the controversial third party doctrine, which holds that when one voluntarily gives up their personal information to a third party like a bank or phone company, that information is no longer protected by  a reasonable expectation of privacy. The 6th circuit court held that while communications content is protected under the 4th amendment, Carpenter had no reasonable expectation of privacy regarding routing information, such as CSLI, because anyone using a phone knowingly “‘exposes’ [the phone’s] location to the nearest cell tower and thus to the company that operates the tower.”

Carpenter’s lawyer argued that the third party doctrine did not apply, that government access to CSLI requires a search warrant, and that without a warrant, any obtained CSLI records must be suppressed. Furthermore, Carpenter argued that the government failed to show reasonable grounds for believing the requested CSLI records were relevant to an ongoing criminal investigation as required under the Stored Communications Act.

Here, like in the Supreme Court case, U.S. v Jones, which dealt with the issue of whether a warrant is required for real-time location tracking, a core question is being avoided: Is an individual’s physical location protected by the 4th amendment? In Carpenter, the issue hinges on whether that interest exists for CSLI metadata, and in Jones, the Supreme Court held that the government’s location tracking required a warrant because the act of placing the tracker in the target’s car constitutes a trespass.  

In Jones, Justice Alito issued a separate opinion that, like the majority, held that a warrant was required, but on different grounds. He argued that sustained real-time location tracking required a warrant, explaining that “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy,” thus triggering the requirement for a search warrant. The Electronic Frontier Foundation, Cato Institute, and others signed on as amicus in support of Carpenter.

In Carpenter, as in Jones, the government collected enough information, over an extended period of time, to create a story of the petitioner’s life that went beyond revealing details that were relevant to the alleged crime. This type of search must require a warrant. According to Justice Sotomayor in Jones, “[i]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties...This approach is 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.” OTI wholeheartedly agrees.

Author:

Maria (Mia) Little is a Google Public Policy Fellow at New America’s Open Technology Institute.