Cellphone case may signal need for change in constitutional doctrines

OCTOBER 2017 TERM

In a world with dramatically changed technology, people have changed all manner of their behavior — from how they send party invitations, to how they access a map, to how they date.

Should constitutional doctrines change too?

The next time this issue may be before the U.S. Supreme Court is in Carpenter v. United States, 16-402, to be heard in the term beginning Oct. 2.

That case implicates what is known as the third-party doctrine, under which any information voluntarily provided to third parties is outside the protection of the Fourth Amendment — and thus subject to seizure by the government without the need for a warrant.

The leading case applying the doctrine is 1979’s Smith v. Maryland, 422 U.S. 735. In that case, the Supreme Court approved the government’s use of a “pen register,” which it installed at a phone company, without a warrant, to record calls that helped prove that a suspect was making threats to a victim. The court wrote: “When he used his phone, [the suspect] voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment .... In so doing, [he] assumed the risk that the company would reveal to police the numbers that he dialed.” Id. at 744.

Carpenter involves just such a situation where a criminal defendant exposed information to a phone company, but through a technology not in use in 1979.

Timothy Carpenter was a suspect in a four-month-long series of Ohio and Michigan armed robberies. To develop its case, law enforcement obtained from his cellphone providers 127 days’ of historical cell-site records, which show which tower a cellphone connected with when in use. These records showed Carpenter’s location (assuming he was the person possessing his phone) and thereby connected him to the location of the robberies. Carpenter was convicted of six robberies and a firearm charge and sentenced to over 115 years imprisonment.

Authorities obtained these records under the federal Stored Communications Act, 18 U.S.C. Section 2703(d). Under that act, no warrant is necessary, but the government must show a magistrate judge facts showing reasonable grounds to believe that the records are relevant and material to a criminal investigation.

The Supreme Court now will address whether the Fourth Amendment allowed law enforcement to obtain Carpenter’s cell-site records absent a warrant.

If the third-party doctrine applies in full force, the case would be decided fairly simply. Indeed, the 6th U.S. Circuit Court of Appeals reasoned that Carpenter is like Smith in that Carpenter voluntarily conveyed his location information to the cellphone company by choosing to use his cellphone, just as (in the 1970s) defendant Smith chose to convey phone numbers when he used his landline. Thus, “for the same reasons that Smith had no expectation of privacy in the numerical information at issue there, [Carpenter has] no such expectation in the locational information here.” United States v. Carpenter, 819 F.3d 880, 888 (6th Cir. 2016).

A few years ago, one justice signaled that she is likely to call that reasoning into question. Writing for herself only in United States v. Jones, 565 U.S. 400, 417 (2012), a case concerning the installation of a GPS device on a car that did not squarely raise the third party doctrine, Justice Sonia Sotomayor wrote:

“[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.”

If the court followed Justice Sotomayor’s suggestion wholesale, Carpenter also might be decided fairly simply — but the other way. Cellphones would in Carpenter prompt the creation of an exception to the third-party doctrine for (at least) location information provided by their use.

Cellphones have already worked a change to a different Fourth Amendment doctrine. In Riley v. California, 134 S. Ct. 2473 (2014), the Supreme Court addressed the exception to the warrant requirement for searches incident to arrest, which allows law enforcement, when arresting a person, to search the person and the area under his immediate control for weapons and evidence of the crime committed. A leading 1970s case allowed officers to search objects found on the arrestee. United States v. Robinson, 414 U.S. 218 (1973) (cigarette package that contained heroin).

In Riley, the court held that the search incident to arrest doctrine did not apply “to modern cell phones, which 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. A smart phone of the sort taken from Riley was unheard of ten years ago” and when the earlier case law was developed. After Riley, there is a clear rule: A warrant now is needed to search a cellphone incident to arrest.

Likewise, if the Supreme Court held that the third-party doctrine did not apply to cellphones, a warrant would be needed to obtain cell-site information.

But interestingly, Carpenter is not arguing for wholesale protection for cell-site location data akin to Riley’s exclusion of cellphones from the search-incident-to-arrest doctrine. Rather, Carpenter’s brief argues only for protection of “longer-term” cell-site location data.

Why this approach? It may be because in Jones — the case in which Justice Sotomayor questioned the viability of the third-party doctrine — Justice Samuel Alito wrote an opinion joined by three other justices that endorsed the idea that long-term, but not short-term, location monitoring was unconstitutional.

Addressing GPS monitoring of a vehicle, the quartet argued that while “relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable ... the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” Jones, 565 U.S. at 430 (Alito, J., concurring, joined by Justices Ginsburg, Breyer and Kagan).

Carpenter may be seeking to form a majority of the court (the Alito four plus Justice Sototmayor) from those whose Jones opinions indicated that they will approve his attack on “long term” monitoring of cell-site location data. Indeed, he argues that one reason that the third-party doctrine from Smith should not apply in his case is the “degree of sensitivity in the information here,” apparently compared to the lesser sensitivity of a smaller amount of cell-site information.

In this way, Carpenter is proposing a middle ground between the two simple possible rules: the third-party doctrine precluding constitutional protection for any location information provided to a phone company (the 6th Circuit’s view applying Smith) and the doctrine not precluding protection for any cell-site location information because it was hardly voluntarily provided (the implication of Justice Sotomayor’s view in Jones). Under the view in Carpenter’s brief, only “longer-term” cell-site information would require a warrant. (The United States has not yet responded with their opposing brief.)

If adopted, Carpenter’s view may not be so simple for lower courts, which will have to sort out precisely what is “longer term” cell-site information and what is not in order to determine the applicability of the constitutional protection. As well, future Fourth Amendment issues as to the third-party doctrine in other contexts might depend upon the scope of the information obtained by the government, rather than merely upon whether a person provided that information to a third party.

Just because Carpenter’s rule would be more difficult for trial courts, however, does not mean that it is wrong. But it would present a new approach in Fourth Amendment law.

In the 1970s, we were using Thomas Guides instead of Waze, and buying postage stamps to send party invitations. Will the third-party doctrine change its behavior as well? If so, how? That is at stake in Carpenter.