On Wednesday, the Supreme Court will hear Carpenter v. United States, a case experts are calling the most important privacy issue before the court in a generation. At issue, according to SCOTUS blog, is “Whether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.”
Given that nine out of ten adults in America use some kind of cell phone, a number that has increased substantially since even a decade ago, this decision regarding electronic communications and Americans’ privacy and property rights will be landmark.
Here’s What Went Down
Between December 2010 and March 2011, a group of friends in the Detroit area robbed several RadioShack and T-Mobile stores in Michigan and Ohio. Ironically, they chose to steal cell phones (note: if you steal something, don’t steal an item that can be tracked). A month after the spree, four of the thieves were arrested, but not the mastermind of the scheme, Timothy Carpenter. A guilty compatriot turned over his phone, and FBI agents reviewed the calls he had made around the time he and his buddies were snatching cell phones.
Because of the Stored Communications Act, a judge granted an order for the FBI’s request to obtain “transactional records” from wireless carriers for multiple phone numbers for “[a]ll subscriber information, toll records and call detail records including listed and unlisted numbers dialed or otherwise transmitted to and from [the] target telephones […] as well as cell site information for the target telephones at call origination and at call termination for incoming and outgoing calls[.]” The judge didn’t grant a warrant, which would have required probable cause, and which law enforcement did not yet have.
This is where the infamous “Carpenter” comes in. From the records, law enforcement was able to figure out that one of the thieves had been in touch with Carpenter and, because of which cell phone towers Carpenter’s phone pinged, that he had been near the robberies. This led to Carpenter being arrested, convicted by a jury, and sentenced to 116 years in prison.
Does the Fourth Amendment Protect Data?
At first, it might not seem like there is an issue at here at all. The rub, however, lies in whether a judge can grant a warrantless search of cell phone records that reveal the phone’s (and thus user’s) whereabouts without violating the Fourth Amendment. Recall, the Fourth Amendment “protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” Without the police search of digital data, it’s possible Carpenter may never have been linked to the robberies or arrested, or the police would have had to dig up better hard evidence to get him convicted.
As the Washington Post explained, “The government may only violate these rights upon issuance of a warrant. The Fourth Amendment protections include the public’s content of their communications; however, federal courts have long recognized that the Fourth Amendment does not protect the public from allowing the government to obtain the information necessary to get communications from point A to point B. For example, the government can obtain from a letter or package without a warrant the sender, receiver, originating and delivery addresses, package size, and weight; however, the government must obtain a warrant before opening the package or letter to obtain its contents.”
SCOTUS already has a precedent regarding phone communications. In Smith v. Maryland, the court held the government may not eavesdrop on a phone call but could obtain without a warrant the phone numbers the person dialed. In 1986, the Congress passed the Stored Communications Act, which governs the privacy of stored Internet communications.
The government is expected to rely upon these decisions to make its case that the warrantless search of Carpenter’s calls and cellphone’s whereabouts did not violate his Fourth Amendment rights. Carpenter will undoubtedly lean heavily on the Fourth Amendment itself and Riley v California to make the case that, as Lawfare said, “cell phones have become intertwined into the lives of American citizens and the vast data contained within a person’s phone potentially holds the sum of the individual’s private life, so the routing data contains much more than the ‘information necessary to get communications from point A to point B.’”
Here Are This Case’s Implications
The juxtaposition between the way the Fourth Amendment is written and how much technology has advanced since those times lies at the heart of legal stickiness here. What constitutes “houses, papers, and effects?” Are cell phones, the digital data within them, and information retrieved from the cell towers from which that data bounces and databases communications companies keep to provide their services? And what exactly is a “search?” Must it be physical trespassing, or could it be digital maneuvering through computer search or even a “hack?”
The late Justice Scalia was famously a Fourth Amendment originalist, as obvious in his dissent in Kyllo v United States, which held in a 5–4 decision that using thermal imaging was a “search” and required a warrant. But the advancement of time and technology makes cases like this unusually difficult to interpret. As Lawrence Rosenthal, a law school professor, wrote:
Justice Scalia’s Fourth Amendment originalism hangs by a thread […]Sometimes Justice Scalia himself seemed to acknowledge the difficulty of applying founding-era doctrine to contemporary contexts, as when, in 2014, he joined a unanimous Court in Riley v. California in holding that information in cellphones could not be retrieved without a warrant, despite the traditional rule that permitted police to search an arrestee’s person and effects incident to arrest.
Several reputable organizations have filed amicus (friend of the court) briefs in favor of Carpenter, including the Cato Institute, the Electronic Frontier Foundation, and the American Civil Liberties Union. They argue digital data is personal property.
The Founders intended for the Fourth Amendment to protect our personal property, and in 2017 that must mean our digital data too. https://t.co/WsQdgivD6a
— ACLU (@ACLU) November 20, 2017
Time will tell how the Supreme Court decides.