Back to the Future: the Fourth Amendment in the Digital Age

OK, those unfortunate souls who occasionally read this blog know that I like to go on about the intersection of the 18th Century language in our Bill of Rights (which includes such tremendous ideas like religious liberty, freedom of expression, the right to not incriminate oneself and the right to be free from unreasonable searches), with the world of smartphones, digital communications, and mountains of data for each person and incident that happens to be captured by some device or trove of information.  We all know the the “Framers” or our Constitution had no way of predicting what the world would look like in 2017, but it is fascinating that we try to match their expectations up with modern existence.

Carpenter v. United States is the latest case involving this confluence of our rights and the Digital Age. Mr. Carpenter was indicted for being involved with a series of armed robberies. One of his buddies gave the police a series of phone numbers that Carpenter had used.  The police then went to the cell phone providers, seeking lots of different kinds of information that can be dredged up involving how a device was used, where it was located, and other data that essentially provides a road map to the device-user’s life.  But, here’s why the case is in the Supreme Court:  the police did not get a search warrant from a judge, but instead they resorted to a federal law called the Stored Communications Act (the “SCA”), a 1986 law that allows phone companies to disclose records when the government provides them with “specific and articulable facts showing that there are reasonable grounds to believe” that records at issue “are relevant and material to an ongoing criminal investigation”. Under the SCA, a prosecutor can get around the need to show that there is probable cause to believe that a crime has been committed.  More and more every year, we see cases where the police regularly avoid search warrants, and instead get mountains of data from cell phone providers under the more lenient SCA. As a matter of fact, my law partner Carl and I did a case very similar to what happened in Carpenter, cell phone data obtained under the SCA that was going to be used against our client.

In Mr. Carpenter’s case, the police got several months’ worth of historical cell-site records, which indicate which cell towers a cellphone connected with while it was in use. All this data allowed investigators to show that, over a multi-month span, Carpenter’s cellphone connected with cell towers in the vicinity of the robberies. Carpenter was arrested, he was charged with the robberies, and his legal team argued that the records should be suppressed because the government had not obtained a warrant for them. The trial and appellate courts disagreed, so Mr. Carpenter was convicted and is serving a sentence of more than 100 years.  Some of you are saying to yourself, “so what, he got what he deserved.”

However, the bigger issue here is the legal mechanism used to deny Carpenter’s challenge to the SCA. The lower court judges said that the government was not required to obtain a warrant because Carpenter could not have expected that cellphone records maintained by his service provider would be kept private.  This is sometimes called the “third party” doctrine, and it goes like this: if you willingly give your information over to some other person or company, you have no right to complain about a governmental search in that you relinquished your right to keep the information private.  However, we all know that no one really wants to give up all of their privacy simply by signing up with AT&T, Verizon, Sprint, Amazon, Facebook or the like. So, Carpenter is a big deal, for the Supreme Court will decide whether the older cases using the “third party” rule are still good in an age when every one of us essentially gives huge quantities of private information over to some faceless corporation in return for using that entity’s services.

This is not the first time the Supreme Court has looked at this intersection of cellphone technology and the Fourth Amendment. Three years ago the Court said that the police need a warrant to search through the information in your cell phone if you get arrested. Chief Justice John Roberts explained that today’s phones are “based on technology nearly inconceivable just a few decades ago” and “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” In that case, the Court said that the police can sometimes still get and look through the information in a person’s cell phone.  However, the police need to do what the Framer’s of the Constitution told them to do: get a warrant.

In Carpenter’s case, prosecutors, argue that giving law-enforcement officials access to information about where a cellphone has been is not the same as allowing them to review the data inside the phone itself. But no matter what they decide, their ruling could shed significant new light on what limits the Fourth Amendment will impose on efforts by police to benefit from the significant technological advances in the 21st century.  I am looking forward to the arguments and the decision.