Supreme Court recognizes a new expectation of privacy in the digital age
The opinion suggests a shifting landscape for police searches and seizures
Departing from decades of precedent, a divided Court ruled that police need a warrant to access cellphone tracking data held by a third-party service provider. What the decision holds for the future remains unclear.
A court divided
On June 22, 2018, the U.S. Supreme Court’s nine Justices issued a rollicking 115-page opinion. The 23-pages “penned” by the slimmest majority of five sparked four separate dissents totaling 92 pages. In a “strange bedfellows” arrangement, Chief Justice Roberts, considered a conservative, who wrote the majority opinion, was joined by the Court’s four “liberal” Justices – Ginsburg, Breyer, Sotomayor and Kagan.
While investigating a series of armed robberies, the FBI obtained 127 days of cell-site location information (CSLI) from Timothy Carpenter’s cellphone service provider under the Stored Communications Act (SCA). The SCA does not require a warrant or probable cause.
Carpenter’s phone had generated 12,898 locations during that time, including some near several of the robberies when they occurred. This evidence corroborated witness testimony that Carpenter planned the robberies, supplied the guns and served as lookout.
On appeal, Carpenter claimed he had a reasonable expectation of privacy in the detailed physical locations revealed by his cellphone requiring police to show probable cause and obtain a warrant. He relied heavily on the Court’s 2012 decision in U.S. v. Jones where it held that police needed a warrant to place a GPS tracking device on a car driven by a suspected drug dealer.
The government argued the Supreme Court had repeatedly held that individuals don’t have a reasonable expectation of privacy in information they voluntarily provide to a third party – in Carpenter’s case, a cellphone service provider. It focused on two cases:
- Smith v. Maryland, holding no privacy right to phone records revealing numbers Smith had dialed.
- U.S. v. Miller, holding no privacy right to checks and deposit slips Miller had given to his bank.
Smith and Miller were decided in the 1970s.
(NOTE: For a more thorough discussion of the arguments in Carpenter and links to other articles about the Supreme Court’s opinions on cellphones and privacy, see my previous article, How the SCOTUS cellphone location data case could impact police searches and digital privacy.)
If you want to witness a labyrinthine case of mental gymnastics, read the court’s 115-page opinion in Carpenter. For our purposes, the Court sided with Carpenter. If the police want extensive CSLI, they need a search warrant supported by probable cause.
The majority rationale was that the third-party doctrine is of limited use in the digital age for two reasons:
- The data the FBI obtained was not finite, discrete information like that in Smith and Miller. Rather it was an intimate window into Carpenter’s life, revealing not only his movements but, as Chief Justice Roberts noted, his “familial, political, professional, religious and sexual associations.”
- The majority opinion also observed, “a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the part of the user beyond powering up.” As such, the information isn’t “voluntarily” provided as was previously meant by the Court in Smith and Miller.
The Carpenter decision does have limits.
- The majority suggested that less than 7 days of records might not constitute a search for Fourth Amendment purposes.
- The opinion did not extend to real-time CSLI, “tower dumps” (a download of information on all devices that connected to a particular cell site during a particular interval), or other business records that might incidentally reveal location information.
- Nor did it call into question conventional surveillance techniques and tools, such as security cameras.
- The decision acknowledged exigent circumstances could establish an exception to the warrant requirement, e.g., a fleeing suspect, to protect individuals who are threatened with imminent harm, or prevent the imminent destruction of evidence. Bomb threats, active shootings and child abductions could fall within the exception.
- The opinion did not address collection techniques involving foreign affairs or national security.
The future for police access of digital data
Carpenter didn’t do away with the third-party doctrine. But the majority’s rationale suggests other digital data that provides a detailed look at a person’s private life – emails, text messages, internet searches, online bank and credit card activity – would likely require a warrant. And the case recognizes that many people expect the Fourth Amendment protections afforded to their home and personal effects should extend to their digital selves.
Justice Gorsuch’s dissent isn’t to the requirement of probable cause and a warrant for CSLI. Rather he disagrees with the majority coming to that conclusion by way of a “reasonable expectation of privacy” analysis. He suggests instead that digital data is “property and effects” within the Fourth Amendment’s original text and deserving of its protection for that reason. Carpenter failed to make this argument but expect a future defendant to raise it with the result that Justice Gorsuch may join the current 5-Justice majority in requiring a warrant for digital information.
Justice Kennedy’s retirement announcement adds another uncertainty. Application of the Fourth Amendment in the digital age is an issue that has crossed the Court’s conservative/liberal lines. Not just in Carpenter but in the unanimous 9 – 0 opinion in Jones. How a younger Justice might view the issue might have less to do with their political ideology than with how much of their life has been lived in the digital age.
In the meantime, police may want to consult with their local prosecutor before searching or seizing extensive digital information in non-exigent circumstances.