Carpenter v. United States: Warrantless Tracking

This post is written by Symposium Editor Matt Kriege. Opinions and views expressed herein are those of the writer alone.

 

Recently, the Supreme Court heard oral arguments in the case of Carpenter v. United States. This case is about location data that is transmitted from cell phones to cell towers in order for the cell phone carrier to know where to send calls when your number is dialed. The case dates back to 2011 when police arrested a man (Carpenter) for a number of armed robberies. One of the co-conspirators in the robberies provided the FBI with the cell phone numbers of all the other participants. Using these telephone numbers, the FBI was able to convince a magistrate judge to issue orders for the “transactional records” of each of the numbers “under the Stored Communications Act, 18 U.S.C. 2703(d).”[1] It is important to note that these orders were not a warrant and did not require the burden of proof that is required for a warrant to be issued. Under Stored Communication Act, 18 U.S.C. 2703(d), “the government may require the disclosure of certain telecommunications records when ‘specific and articulable facts show [] 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] This standard is much easier to meet than the probable cause standard that would be required if requesting a warrant from the judge. With the orders obtained under the Stored Communications Act, the prosecution was able to obtain 127 days’ worth of cell site data from the defendant’s cell phone carrier.[3] The issue in the case is whether the warrantless search and seizure of this data constructed a violation of Carpenter’s fourth amendment rights. “Carpenter . . . argue[s] that the Fourth Amendment [] required the government to obtain a search warrant, pursuant to a showing of probable cause, before collecting the data.[4]

When this case came up to the 6th Circuit Court of Appeals they drew a strong distinction between the content of the communication and the “information necessary to get those communications from point A to point B.”[5] This distinction comes from a history of case law that holds the same, this distinction has held in regard to emails and phone calls. The content of the emails are protected by the 4th Amendment, but not the metadata that gets sent along with them.[6] The 6th Circuit held that the business records at issue, in this case, are similar to metadata with emails or phone numbers with phone calls, not protected by the 4th Amendment. The records obtained by the prosecution contain nothing about the content of the phone calls they are only data points, keep by the cell provider, regarding location, duration, and time of the call. Therefore, according to the 6th Circuit Court of Appeals, the governments obtaining of these records was not a search. The court reasoned that Carpenter had no property interest in the data that was being transmitted. As well as, that any reasonable cell phone user would know that their location data was being transmitted to the cell phone provider and therefore would have no reasonable expectation of privacy in the data.

Carpenter puts forth a number of arguments. First, he states that this case is like Jones where The Court deceived that long-term GPS surveillance impedes on a person’s Fourth Amendment rights. The Court states that Carpenter had no expectation of privacy in these records, first they were business records of a third party and second, he knew or should have known this information was being transmitted to this third party.  Also, the court makes a point to note that this is not GPS data that is being pulled from the smartphone, instead it is general location data based on where the phone was pinging cell towers that were kept by the cell phone provider.[7]

In oral arguments in front of The Supreme Court on November 29th counsel for Carpenter was berated with questions. The level of voluntariness of this information going to the phone company, the consumer’s property rights in the data, and the third-party doctrine, were of particular focus. The reason that this case is so important to watch is “[i]f the court determines the government doesn’t need probable cause to access volumes of individuals’ location data, it could open the doors to a new era of official surveillance.”[8] The amount of data that individuals expose to third-parties through the use of smartphones is incredible. Under the current outdated third-party doctrine, all this data is available to the movement without the need for a warrant.

Justice Kegan even acknowledges third-party doctrine is dated. In oral argument, the Government states that “[if] the government reaches into the phone, pulls out information. That, I would concede, is a search. What we’re doing here is not going to the individual and extracting information from him. We’re getting information from a third-party provider, relying on the line of cases that Justice Alito alluded to, that allow us to use subpoenas.”[9]

However, Justice Kegan responds, “that line of cases was developed in a period in which third parties did not have this kind of information.” Justice Kegan makes a really good point here.  Just by going into my settings on my iPhone and looking under “privacy” I can see that there are roughly 100 apps that have access to my location data either while I am using that specific app or all the time. These apps using my location make things easier for me. When I get out of my car my phone, it knows where I left it parked. When I have to be at a certain place at a certain time, my phone knows when I should leave based on my location. The sharing of this type of data with those third parties is for my convenience, however, that doesn’t mean that just because I am sharing for my convenience I should lose all expectation of privacy in that data. This doesn’t even scratch the surface of information I am sharing. I have health data, photos, contacts, and even data regarding smart lights installed in my bedroom. Is there even a way to have a reasonable expectation of privacy in anything anymore with the third-party doctrine and our increasingly connected lives.

 

To learn more about this case check out these links:

[1] Carpenter v. United States, Oyez, https://www.oyez.org/cases/2017/16-402 (last visited Nov 29, 2017).

[2] Id.

[3] United States v. Carpenter, 819 F.3d 880, 886 (6th Cir. 2016).

[4] Id.

[5] Id.

[6] See, e.g., United States v. Christie, 624 F.3d 558, 574 (3d Cir. 2010); United States v. Perrine, 518 F.3d 1196, 1204-05 (10th Cir. 2008); United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2007).

[7] Carpenter, 819 F.3d 880.

[8] The US could be on the verge of dismantling digital privacy as we know it, Quartz https://qz.com/1140277/carpenter-v-united-states-the-us-could-be-on-the-verge-of-dismantling-digital-privacy-as-we-know-it/ (Last visited November 29th,2017).

[9] Transcript of Oral Argument at 68, Carpenter v. United States (No. 14-1572)

Author: nkylrev

The Northern Kentucky Law Review, founded in 1973, is an independent journal, edited and published entirely by the students of NKU Chase College of Law.

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