Journal of Information & Privacy Law

Carpenter v. United States: The Evolving Relationship Between Advanced Technology & Personal Privacy

By Raquel Lee on Monday, November 20th, 2017
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In June 2017, the Supreme Court granted certiorari to Carpenter v. United States, a case that will an answer an essential question for our data-driven society: whether a warrantless search and seizure of historical cellphone records revealing location and movements of a cellphone user is permitted by the Fourth Amendment. As of 2016, 95% of Americans own a cellphone of some kind, and 77% of Americans own a smartphone. All cellphones are capable of providing crude location data (e.g., through cell tower pinging), but smartphones are particularly accurate in providing location data and movements because all modern smartphones are equipped with GPS (Global Positioning System). Because the majority of Americans carry a virtual “tracking device,” it would follow that they should be interested in the outcome of Carpenter v. United States. Furthermore, any American believing they have a reasonable expectation of privacy in their cellphone use should be equally interested in Carpenter’s outcome.

The case originates from the controversy of Mr. Timothy Carpenter, one of two defendants convicted for his role in aiding and abetting a string of armed robberies at Radio Shack and T-Mobile stores in and around Detroit, Michigan. Mr. Carpenter’s conviction was based in part on 127 days of cell-site location information (CSLI) that placed him between ½ and 2 miles from the robberies around the time they were committed. The CSLI records revealed 12,898 separate points of location data – an average of 101 each day over the course of four months. A divided panel of the Sixth Circuit Court of Appeals affirmed Mr. Carpenter’s conviction, holding that he had no reasonable expectation of privacy in his CSLI, so, the government did not need a warrant before obtaining and admitting the CSLI evidence at trial. Soon thereafter, the American Civil Liberties Union became co-counsel with Mr. Carpenter’s defense attorney to file a petition for review by the Supreme Court. Mr. Carpenter’s petition for review was accepted, and the American Civil Liberties Union will continue to represent Mr. Carpenter before the Supreme Court, which is set for argument in November 2017.

The government relied on the third-party doctrine, a theory used by law enforcement to access personal data shared with third-parties without having to show probable cause. According to the government’s position, the third-party doctrine allows the government to access information collected by private businesses and service providers without constituting an unlawful search under the Fourth Amendment. However, the Supreme Court has previously recognized, in United States v. Jones, that the third-party doctrine approach is inappropriate in its applicability to modern technology. Justice Sonia Sotomayor wrote, concurring, that, “[t]his approach is ill-suited to the digital data age, in which people reveal a great deal of information about themselves to third-parties in the course of carrying out mundane tasks.” Indeed, a cellphone has become a basic necessity for modern life. Cellphone and smartphone users are usually subject to ubiquitous, non-negotiable contracts for essential technological devices and services. Further, the use of cellphones and smartphones are inherently designed with location services, and those location services are usually not voluntary. Cellphone and smartphone devices and services collect, record, and reveal a massive amount of detailed data about their users to private third-parties. In fact, the Supreme Court has acknowledged the change in both quantity and quality of data collected by modern electronic devices from traditional methods of stakeout surveillance. As Justice Stephen Breyer noted in the oral argument of United States v. Jones, that, in terms of stakeout surveillance, “memories are fallible, [GPSs] aren’t.” The law must further recognize advances in sophisticated technology, and protect the data it collects, otherwise, the government may access that data to obtain information that we do not wish them to have.

The review in Carpenter indicates that the justices are interested in exploring and answering the pressing question of whether Americans have a reasonable expectation of privacy in their historical location information, such as CSLI. Whichever way the justices decide, the implications of Fourth Amendment jurisprudence and the relationship between advanced technology and individual privacy will be pivotal.

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