- - Tuesday, July 3, 2018

ANALYSIS/OPINION:

In its newly released decision on Carpenter v. United States, the U.S. Supreme Court has downloaded a necessary update to its Fourth Amendment jurisprudence on unlawful search and seizure.

The court found that when police acquire someone’s cellphone location records from a cellphone company, that amounts to a “search” and police generally need a search warrant first. While the court cautions that its opinion is to be considered narrowly, this decision brings constitutional doctrine into the digital age.

The Fourth Amendment protects “persons, houses, papers, and effects against unreasonable searches and seizures.” In a 5-4 decision, the court agreed with the defendant Timothy Carpenter, who had been convicted partly based on evidence from his cellphone location records. His lawyers argued that when the police acquired his phone records from his cellphone carrier — including about 13,000 location “pings” — a search had occurred.

The police had argued that no search had occurred, thus requiring no search warrant, because Mr. Carpenter had no expectation of privacy to location data he voluntarily (and automatically) transmitted to a third party, his cellphone carrier.

This “third-party doctrine” is derived from prior Supreme Court decisions. But the ease with which police can acquire modern data encourages low-quality “fishing expeditions” by law enforcement. The court decided in Carpenter to carve out an exception to the general rule that no warrant is required for information turned over to third parties.

The decision holds that since cellphones have become such an indispensable part of daily life, and cellphone location information can provide such detailed information about a person’s physical location, that it is distinct from other types of information like dialed numbers or bank records. Police can still gather that data without a warrant under the third-party doctrine.

This change to the interpretation of the third-party doctrine more accurately reflects what the average person expects that a company may do with their data. With the Carpenter decision, police will likely start putting in a little more legwork, including seeking a search warrant, before hoovering up personal data from cellphone and tech companies.

The more interesting aspect of the decision was that the majority appears to have taken a long look at some clear technology trends, including the fact that it’s increasingly possible for the police to “re-create” someone’s movements from months or years ago. New technologies like connected homes, FitBits, high-precision GPS, petcams and Alexas mean we are turning over more of our lives to be processed and stored with tech companies and the Internet “cloud.”

It should be noted that the Carpenter decision does not eliminate the third-party doctrine. For the time being, police generally aren’t required to get a warrant for other third-party data like credit card transactions and documents and videos people transmit to the cloud.

As the running joke among technologists goes, “there is no cloud, just someone else’s computer.” Additionally, to the chagrin of many privacy advocates, this decision focuses only on government access to user data and does not impact private companies’ data-retention policies.

Because the ruling is still intended to be relatively narrow, there will be many questions left to answer about what data is and isn’t subject to Fourth Amendment search requirements. In the end, the decision means courts around the country must look at warrantless access to data anew.

That’s a good thing. It has never been easier to record and store information about our conversations, movements and interests “on someone else’s computer,” and consumer trends may force further updates to what an unreasonable search and seizure looks like.

• Brent Skorup is a senior research fellow and Jennifer Huddleston Skees is a legal research associate with the Mercatus Center at George Mason University.


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