Precedent-Shattering ‘Carpenter’?
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Stephen Treglia[/caption] Late last month, SCOTUS issued its most far-reaching expansion of the right to privacy in over 50 years in Carpenter v. United States. While not completely abandoning legal precedent that had been black-letter law, it is most certainly the first injection of the color gray. First, however, a brief stroll down memory lane of the history of the law’s recognition of the legal right to privacy is necessary. It is only from this perspective that the truly ground-breaking impact of Carpenter can be fully appreciated.
In the Beginning
At the time of this nation’s birth, our Founding Fathers did not perceive the need for crafting a fundamental right to privacy. Nowhere does that word appear the Declaration of Independence, the Constitution or the Bill of Rights. People occasionally point to the Fourth Amendment as evidence of an intent to infuse the genetic foundations of privacy into our Constitution. Closer inspection, however, negates that. The protection from warrantless seizures of property and persons was not based on some idyllic philosophy that mankind benefits from living under the aura of a free and unencumbered environment. Rather, it was a direct reaction to colonists’ anger over random, unannounced, and unsupervised invasions of their homes and persons by British soldiers who possessed no reason to believe criminal activity was afoot. Support for this conclusion exists by the very wording of the amendment itself as well as the way it has been interpreted by American courts over the years. The amendment does not outlaw all warrantless searches, just unreasonable ones. Several exceptions for the need of a judicially-authorized search warrant exist. Knowing and voluntary consent, exigent circumstances, inevitable discovery and plain view are such examples. In addition, the amendment only applies to law enforcement. Private citizen searches, as long as they are not performed in the capacity of an agent of law enforcement, are not suppressible pursuant to the 4th Amendment even when a crime is committed to execute the search. The reasoning here is that the remedy of suppression of acquired evidence for an “illegal” law enforcement search would discourage unconstitutional activity. Suppression of evidence from use in court would not inhibit “illegal” searches performed by non-agent private citizens. A clear example of this principle can be found in U.S. v. Runyan, 275 F.3d 449 (5th Cir. 2001). A husband and wife separated with the latter leaving the marital abode. The husband changed all the home’s locks in her absence and built a surrounding fence with a linked chain secured by a lock. Despite all the safeguard attempts, the wife returned on multiple occasions, accompanied by others, even cutting through the fence’s linked chain in order to, ostensibly, secure the wife’s personal property. During these visits, computer discs belonging to the husband were taken which ultimately were discovered to contain child pornography. As a private search, even though a burglary arguably occurred, the seized discs were not the subject of suppression as an unreasonable warrantless search deserving 4th Amendment protection since it was not conducted by law enforcement.
‘Olmstead’s’ Affirmation
Other long-standing privacy limitation demonstrated the lack of a universal right. In Olmstead v. U.S., 277 U.S. 438 (1928), SCOTUS faced whether the warrantless interception of telephone communications violated the 4th Amendment. Here, police attached a listening device to an outdoor telephone wire leading into the building where Olmstead was running a bootlegging operation. Chief Justice (and ex-president) William Taft wrote the majority opinion in a 5-4 decision that would probably shock the sensibilities of most 21st century Americans. Despite telephonic technology existing, by the court’s own admission, for about 50 years, and therefore clearly not existing in the late 18th century, the majority insisted on applying a “strict constructionist” analysis. Since the Founding Fathers, when they drafted the amendment, only mentioned “physical things” (a person, a place, papers or effects), it was never their intent to extend that protection to intangible items such as speech or communications. Only “hearing” occurred in Olmstead, and because no one entered the premises to do so, no prohibition specifically detailed in the Amendment was infringed. Justice Louis Brandeis, sometimes called the “Father of American Privacy,” wrote an impassioned dissent containing the oft-cited justification for expanding the coverage of 4th Amendment beyond its literal language.
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness… They conferred against the government, the right to be let alone–the most comprehensive of rights and right most valued by civilized men (at U.S. 478).
‘Katz’s’ New Standard
It took nearly 40 years for a majority of SCOTUS to view privacy more in line with Justice Brandeis. In Katz v. U.S., 389 U.S. 347 (1967), the facts were very much in line with the majority holding of Olmstead. The listening device was placed on the outside of a public phone booth, without a warrant, to intercept a bookmaker’s conversations occurring inside. In a 7-1 decision, the majority adopted a new standard. Overturning Olmstead, the question became, “Does a reasonable expectation of privacy exist?” Here, SCOTUS ruled that telephone communications do have such an expectation. It didn’t take too long before this new privacy definition would be tested. In U.S. v. Miller, 425 U.S. 435 (1976), law enforcement secured a grand jury subpoena duces tecum for defendant’s bank records during an investigation of an illegal liquor distillery, records arguably protected by the Bank Secrecy Act of 1970. SCOTUS crafted a new search warrant exception ultimately called the “third-party rule.” Simply put, any information a person shares with another party, here the bank, loses any reasonable expectation of privacy. Soon thereafter, SCOTUS extended the third-party rule to telephone numbers dialed, and therefore transmitted, to the phone company in Smith v. Maryland, 442 U.S. 735 (1979).
'Jones' Lays a Foundation
This search warrant exception was, until recently, a relatively easy and consistent rule to follow. The first case to hint otherwise was U.S. v. Jones, 565 U.S. 400 (2012). Rarely does a unanimous holding plant fodder for upending the table of precedent, but the seed of Carpenter’s genesis is clearly evident in the concurring opinion of Justice Sonia Sotomayor. Jones was the target of a joint FBI and DC Metro Police investigation into drug trafficking. Law enforcement planted, without proper judicial authority, a GPS device in the undercarriage of a Jeep he used. The majority opinion was written by Justice Antonin Scalia along, as anticipated, a “strict constructionist” analysis. As opposed to the short-term warrantless use of a tracking beeper affixed to a chemical barrel transported for a few hours in the back of an open truck held permissible in U.S. v. Knotts, 460 U.S. 276 (1983), the results of 28 days of continuous warrantless tracking in Jones was suppressed on grounds of an illegal warrantless trespass onto physical property–the Jeep. Justice Samuel Alito authored a concurring opinion joined by three other justices, applying a Katz analysis to hold that while a short-term uninterrupted tracking (for a period of time he would not specify) might not violate a reasonable expectation of privacy, thereby keeping the Knotts line of cases still valid, 28 consecutive and uninterrupted days of surreptitious and uninterrupted warrantless GPS tracking in Jones were clearly unreasonable and justified suppression. Sotomayor joined Scalia in his trespass analysis, thereby making that a five-justice majority opinion, but, in a separate concurring obiter dictum opinion, wondered if it were time to reconsider an unwavering application of the third-party rule in the Internet era. She expressed her concern that modern technology allows an individual to be tracked for literally weeks on end, even when that information is initially acquired only by a technology service provider and not law enforcement. The fear she expressed in her concurring opinion was that a detailed profile of an individual’s minute-by-minute whereabouts is recorded by a smartphone’s service provider to the point of that person’s life no longer being private. In light of the growing degree of perimeter accuracy, an individual’s whereabouts could be determined from the psychiatrist, to the plastic surgeon, to the synagogue or church, to the strip club, to the gay bar, and so forth. Just because that information was acquired by a non-governmental entity, it should not be simply handed over to law enforcement without a search warrant per the “third-party rule.”
Then Came ‘Carpenter’
Timothy Carpenter was a suspect in a series of robberies in Detroit. Law enforcement secured court orders issued pursuant to 18 U.S.C. §2703(d), a provision of the Stored Communications Act of 1986 (SCA), commonly called a “2703d order,” which permits acquisition of certain transactional records of technology providers upon a showing of “reasonable grounds” that such records are “relevant and material to an ongoing investigation.” At issue were 127-days’ worth of historical “cell-site location information” (CSLI) secured from Carpenter’s cellphone company, the results of which were used during his trial to establish his physical proximity to a number of the robberies. Chief Justice John Roberts authored the majority opinion in this 5-4 decision, which held the CSLI records were protected by a reasonable expectation of privacy so that law enforcement’s warrantless acquisition required suppression. Upon closer scrutiny, the precedents the majority chose to buttress a Katz finding are a bit curious. Several references were made to the Jones case to support the conclusion that extended invasions upon personal privacy caused by the warrantless and uninterrupted tracking of personal movement is unacceptable. But Justice Roberts was forced to quote from the minority concurring opinion of Alito rather than the majority opinion of Scalia because the former argued suppression under a Katz analysis as opposed to a trespass violation advanced by the latter. The majority in Carpenter also relied on Riley v. California, 573 U.S. ___ (2014), for the modern-day reality that cellphones are a feature of human anatomy, even more so than a vehicle that is left behind on the street, since they follow their respective owners into private residences, doctor’s offices, political headquarters and potentially many other potentially revealing locales. But the harm addressed by the Riley decision was not remote warrantless tracking, but the warrantless seizing and searching the contents of a person’s cellphone incident to a lawful arrest. Carpenter also had to find a way to distinguish the third-party rule of Miller and Smith. The majority in Carpenter found a significant difference in the limited amount of personal information disclosed in those third-party decisions as opposed to the “seismic shifts” caused by today’s technology that can provide detailed personal location information for as much as five years. The majority also raised the concern that the average cellphone user probably is unaware of the detailed tracking such usage can produce. Yet, there are some interesting distinctions to observe here. Both Jones and Riley challenged technology-generated information accessible only because of law enforcement’s conduct. The information sought in Carpenter was historical records generated and possessed solely by private sector activity, much like in Miller and Smith. Plus, acceptable law enforcement access to business records prior to Carpenter routinely “crossed the lines” drawn here. Smith held that a telephone user had to know the numbers dialed were received and tracked by the phone company, and if it wasn’t known to the user, such subjective unfamiliarity was too unreasonable to justify a reasonable expectation of privacy. Additionally, the dissent in Carpenter accurately observed that it is commonplace for law enforcement subpoenas to request years’ worth of business records. But possibly the greatest anomaly can be found in the Carpenter decision itself. The majority specifically noted that law enforcement still has the ability to access future CSLI via a 2703d order. What that means then is that it is permissible for law enforcement to capture live, real-time CSLI via a judicial decree that only requires a finding of reasonable grounds of relevancy and materiality to an ongoing investigation whereas historical CSLI, which law enforcement did nothing to generate or record, can only be secured by a judicial finding of probable cause. This construct seems completely contrary to the SCA matrix of requiring greater judicial oversight as law enforcement climbs the ladder seeking more invasive electronic data from subpoenaing “subscriber records” to 2703d orders for “transactional records” to a search warrant for “stored communications” to an eavesdropping warrant for “real-time communication interception.” The Carpenter decision now splits “transactional records” into “historical” and “real-time” and requires greater judicial approval of a search warrant between the SCA ladder rungs of “subscriber records” and “real-time” CSLI. That, somehow, doesn’t seem quite right.
Conclusion
Few legal issues are as front-and-center in today’s world as the privacy of personal computer data. The recent effective date of the European Union’s General Data Protection Regulation, followed shortly thereafter by California’s passage of its own version, is just one small slice of this rapid and recent evolution. Carpenter is just one more piece of the pie. How big that pie becomes in the future, or how more pies will the law need, is impossible to currently and reasonably predict. Stephen Treglia, the founder and first Chief of the Cybercrime Unit at the Nassau County District Attorney’s Office, is currently a Cyber & Information Security Consultant in Manhattan.
