Earlier this month, the United States Supreme Court agreed to review whether people have a reasonable expectation of privacy in their cell phone location data that is shared with cell phone service providers. While the case, Carpenter v. United States, is a criminal case, its outcome could have a significant impact on broader privacy issues.
Facts and procedural history of the Carpenter case
In April of 2011, police arrested four men suspected of committing armed robberies of Radio Shack and T-Mobile stores in and around Detroit, Michigan. One of the men confessed to the police, and said that several other men were also involved. In addition, he provided police with his own and the others’ cell phone numbers.
The FBI then applied for and received court orders under the Stored Communications Act (SCA) for the “transactional records” for those phone numbers, which included cell-site records. The SCA, enacted in 1986, allows law enforcement to obtain these records if the records have been stored for over 180 days and if law enforcement can provide the court with “specific and articulable facts showing that there are reasonable grounds to believe” that the requested records “are relevant and material to an ongoing investigation.” Of course, this standard is significantly lower than the “probable cause” standard that must be met for search warrants under the Fourth Amendment’s protections against unreasonable government searches and seizures that intrude upon an individual’s “reasonable expectation of privacy.”
Complying with the court order, MetroPCS provided the FBI with 127 days of Carpenter’s historical cell-site records. At trial, those records were used to show that Carpenter’s cell phone connected with cell-site towers near the time and place (within a half-mile to two miles away) of each of the robberies. Carpenter was convicted, and received a prison sentence of 116 years.
Appeal to the Sixth Circuit
Carpenter appealed his conviction to the Sixth Circuit Court of Appeals, and argued that his Fourth Amendment rights were violated because the government failed to get a search warrant for the historical cell site records, and that the records should have been excluded as evidence at his trial.
The Sixth Circuit upheld Carpenter’s conviction based on the “third-party doctrine,” which says that individuals do not have a reasonable expectation of privacy in information that they voluntarily disclose to third parties, such as cell service providers, and therefore the government does not need to get a search warrant to obtain such information. This doctrine is based on Supreme Court decisions in United States v. Miller (1976) and Smith v. Maryland (1979).
Writing for the Sixth Circuit majority, Judge Kethledge explained:
This case involves an asserted privacy interest in information related to personal communications. As to that kind of information, the federal courts have long recognized a core distinction: although the content of personal communications is private, the information necessary to get those communications from point A to point B is not.
So, for example, while individuals have a reasonable expectation of privacy in the content of their phone calls, they do not have this same expectation of privacy in phone records regarding non-content (or metadata), such as phone numbers dialed or which cell towers were used to connect the call.
The court added that the same distinction applies to internet communications, meaning that while email content would be protected by the Fourth Amendment, email metadata (such as sending and receiving email addresses and IP addresses) would not be.
In addition, the court compared and contrasted the Carpenter’s facts with previous Supreme Court cases that addressed privacy issues:
- Like the defendant in Smith v. Maryland (1979) (which held that a search warrant was not required), Carpenter must have known that the non-content information from his cell phone was being shared with his cell phone company.
- Unlike the defendant in United States v. Jones (2012) (which held that a search warrant was required) who had a GPS tracking device placed on his car by the police, Carpenter’s cell phone records were collected by a third-party (the cell phone company) and not the government. And, the GPS records in Jones were “accurate within about 50 feet,” while Carpenter’s cell-site records could only show his location to within a half-mile to two miles, about “12,500 times less accurate than the GPS data in Jones.”
- Unlike the defendant in Riley v. California (2014) (which held a search warrant was required) whose smartphone content was searched, Carpenter’s data was about the phone itself, and not the content inside it.
In a concurring opinion, Judge Stranch voted to uphold the trial court’s decision to permit Carpenter’s cell site data into evidence, but did so based on the “good-faith” exception to the Fourth Amendment. And, Judge Stranch set forth his concerns about using the third-party doctrine for records of an individual’s location: “[T]he sheer quantity of sensitive information procured without a warrant in this case raises Fourth Amendment concerns of the type the Supreme Court and our circuit acknowledged in United States v. Jones.” Judge Stranch also pointed out that the 127 days of records Carpenter’s location records were “neither relatively innocuous routing information nor precise GPS locator information,” and expressed his concern about the applicability of a test that appears to admit to no limitation on the quantity of records or the length of time for which such records may be compelled.” In concluding, Judge Stranch suggested “the need to develop a new test to determine when a warrant may be necessary under these or comparable circumstances.”
How the Supreme Court may decide
I don’t know how this one is going to turn out, but if I had to bet I’d say we’re going to see a change. One thing for sure is that times certainly have changed since the third-party doctrine was established in the 1970s and since the SCA was enacted in 1986.
As Carpenter has pointed out, in 1986 “cell phones cost over $3,000, were the size of a large brick, could connect only to fragmentary cellular networks and were used by very few people.” And, things have changed even since Jones was decided in 2012. Every year more and more cell towers go up, and the more cell towers there are, the more precise the cell-site location data will be.
Judge Stranch is one of many judges who have suggested that change is in order. For example, in an 11th Circuit Court of Appeals case, United States v. Davis (2015), Judge Rosenbaum stated in a concurring opinion:
In our time, unless a person is willing to live “off the grid,” it is nearly impossible to avoid disclosing the most personal of information to third-party service providers on a constant basis, just to navigate daily life. And the thought that the government should be able to access such information without the basic protection that a warrant offers is nothing less than chilling.
One big source of insight comes from Supreme Court Justice Sonia Sotomayor, who said in her concurring opinion 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. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as Justice Alito notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” and perhaps not.
I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.
Potential impact on privacy law
Prosecutors make hundreds of thousands of requests for cell-site records each year. And I know from my own experience as a prosecutor that there are many, many cases that would not be proven without those records. If the Supreme Court in Carpenter finds that individuals do have a reasonable expectation of privacy in the non-content data of their communications disclosed to third-parties, the implications for criminal law would be tremendous both in terms of privacy and justice itself. While prosecutors could still get these cell-site location records with search warrants, the reality is that most prosecutors have large caseloads, and obtaining search warrants can be very time consuming, meaning many prosecutors simply won’t be able to get these records for every case where it would be helpful. That, in turn, would lead to fewer convictions.
And, outside of the criminal privacy context, we would also likely see an eventual decrease in the ability of private companies to collect and monetize this data, a practice that is currently a big (and growing) business.
On the other hand, if the Supreme Court goes the other way, and finds that there is no reasonable expectation of privacy in non-content communications disclosed to third-parties, it may become more difficult for plaintiffs to bring invasion of privacy claims or data breach claims.
The Carpenter case is scheduled to be argued in the Supreme Court’s next term, which begins in October. Stay tuned.