PH Privacy
Carpenter v. United States: A Watershed for Digital Privacy
June 22, 2018
Behnam Dayanim, Edward J. George and James Walker*
The Third-Party Doctrine may live to fight another day, but Carpenter will be seen as an inflection point in Fourth Amendment jurisprudence. On Friday, June 22, Chief Justice Roberts, along with Justices Ginsburg, Breyer, Sotomayor and Kagan, wrote the majority opinion, holding that the government’s acquisition of historic cell-site location information (HCSLI) – at least to the extent it includes 7 days or more of cell-site records – was a search and thereby required a warrant.
That Chief Justice Roberts joined the four justices most often associated with the Court’s liberal wing is not altogether surprising in light of his past history of concern with digital privacy – for example, his ruling in Riley v. California, holding that searches of a mobile phone required a warrant.
The facts in the Carpenter case are of interest. In 2011, the government, conducting a criminal investigation in Detroit, obtained months’ worth of cell-site records for suspects. For Carpenter, the records spanned 127 days and revealed 12,898 separate points of location data – an average of 101 data points per day. Carpenter was convicted at trial, based in part on the cell-site records, and he appealed – first to the Sixth Circuit, which affirmed, and thereafter to the Supreme Court.
From the outset of the opinion, it’s clear the Court viewed the government’s warrantless access to HCSLI as a threat to privacy: “[these records] gives the Government near perfect surveillance and allow it to travel back in time to retrace a person’s whereabouts, subject only to the fire-year retention policies of most wireless carriers.” As a consequence, the Court engaged in what some observers have labeled an “equilibrium-adjustment” – a recalibration of established legal standards in response to the perception that technological advancements have greatly altered the balance between government power and individual freedoms. As the Court observed:
Prior to the digital age, law enforcement might have pursued a suspect for a brief stretch, but doing so ‘for any extended period of time was difficult and costly and therefore rarely undertaken.’ For that reason, ‘society’s expectation has been that law enforcement agents and others would not – and indeed, in the main, simply could not – secretly monitor and catalogue every single movement of an individual’s car for a long period.’
Today, the government has the capability to conduct surveillance endlessly and effortlessly; therefore, the Court “decline[d] to grant the state unrestricted access” to HCSLI. The Court’s decision, while purportedly intended to be “narrow” in scope, actually has the potential to be far-reaching.
The Court added an important limitation to the “third party disclosure” principle, adopted by the Court in 1979, in Smith v. Maryland, in which a majority of the Court held that by conveying information voluntarily to third parties, individuals have “assumed the risk” of disclosure to the government.
At the time, then-Justice Thurgood Marshall dissented from that holding, arguing that “[i]mplicit in the concept of assumption of risk is the notion of choice,” and that, as a practical matter, in many settings individuals lack true choice in disclosing certain information to essential or near-essential third parties.
Today, at least in this context, the Court agreed with Marshall:
Cell phone location information is not truly ‘shared’ . . . cell phones and the services they provide are ‘such a pervasive and insistent part of daily life’ that carrying one is indispensable to participation in modern society. [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 . . . Apart from disconnecting the phone from the network, there is no way to avoid leaving behind a trail of location data. As a result, in no meaningful sense does the user voluntarily ‘assume[] the risk’ of turning over a comprehensive dossier of his physical movements.
The Court attempted to downplay the significance of its ruling, calling its decision “a narrow one” that does not express views on “real-time CSLI or ‘tower dumps,’” or question the application of Smith to a range of other information-gathering tools, such as security cameras. Nonetheless, the decision portends similar results in other contexts, as lower courts parse through the Court’s reasoning.
Time will tell exactly how momentous today’s decision will be, but for those who have been clamoring for Congress to act and rebalance the legitimate needs of law enforcement with the privacy interests of Americans, the Supreme Court just took a noteworthy step in that direction on its own.
*Summer Associate; Howard University School of Law (J.D. expected 2020)