July 11, 2018 at 02:23PM
The U.S. Supreme Court recently issued a decision in Carpenter v. United States, an important Fourth Amendment case that was eagerly awaited by many. The decision was widely cheered as a breakthrough in Fourth Amendment jurisprudence — hailed as a “landmark privacy case” and a “major victory for digital privacy.” In the NY Times, Adam Liptak referred to Carpenter as a “major statement on privacy in the digital age.”
Although I agree with the outcome of the decision, I ultimately find it to be disappointing. True, the Supreme Court finally took a step forward to bring the Fourth Amendment more in line with the digital age. But this was only a step in the year 2018, when the Court should have walked more than a mile.
Despite the fact that the various opinions in Carpenter total 119 pages, Carpenter only resolves a narrow issue and leaves many open questions. When something is the length of a Tolstoy novel, the plot should advance quite a lot more. The basic holding of the case is that the Fourth Amendment applies when the government “accesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements.” But a lot more was at stake in the case. This was the prime opportunity of the Court to overrule the Third Party Doctrine, under which the Court has held that that there is no reasonable expectation in privacy for information known or exposed to third parties. The Third Party Doctrine was forged in the 1970s in cases involving bank and phone records. In United States v. Miller, 425 U.S. 435 (1976), the Court held that there is no reasonable expectation of privacy in financial records maintained by one’s bank because “the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities.” In Smith v. Maryland, 442 U.S. 735 (1979), the Court concluded that there was no reasonable expectation of privacy when the government obtained a list of phone numbers a person dialed from the phone company because people “know that they must convey numerical information to the phone company” and cannot “harbor any general expectation that the numbers they dial will remain secret.”
As I argued in an earlier post about Carpenter, the Third Party Doctrine is deeply flawed and eviscerates Fourth Amendment protection in today’s digital age where so much of our information is in the hands of third parties. Carpenter would have been the ideal case to get rid of the Third Party Doctrine. Instead, the Supreme Court did what it has often done in recent years — tiptoe weakly like a mouse, nibbling around the edges of issues rather than directly resolving them. Rather than overrule Smith and Miller, the Carpenter Court just stated that these cases don’t apply to cell-site location records: “We decline to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. ” This is a partial victory, as the Third Party Doctrine finally has a stopping point, but there are an endless series of situations involving the Third Party Doctrine, and the Court has provided scant guidance about when the Third Party Doctrine will apply.
The majority opinion goes out of its way to emphasize its narrowness:
Our decision today is a narrow one. We do not express a view on matters not before us: real-time CSLI or “tower dumps” (a download of information on all the devices that connected to a particular cell site during a particular interval). We do not disturb the application of Smith and Miller or call into question conventional surveillance techniques and tools, such as security cameras. Nor do we address other business records that might incidentally reveal location information. Further, our opinion does not consider other collection techniques involving foreign affairs or national security. As Justice Frankfurter noted when considering new innovations in airplanes and radios, the Court must tread carefully in such cases, to ensure that we do not “embarrass the future.”
But in its fear of embarrassing the future, the Court embarrasses the present. The Court treats these issues as if they were cutting-edge technological issues. In fact, they are rather old technological issues. A larger problem with the decision is that it fails to provide much guidance about when the Third Party Doctrine would apply in other contexts. What test, if any, can be derived from the decision as to when the Third Party Doctrine doesn’t apply? Perhaps a statement toward the end of the decision will help: “In light of the deeply revealing nature of CSLI, [cell-site location information] its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection.” Thus, the test seems to be one of extensiveness of the information and the difficulty of avoiding its collection. But how extensive? What if the information is extensive but collection is more avoidable?
So while I am pleased that the majority opinion finally indicated a limit to the Third Party Doctrine, this opinion is just a baby step in the right direction that leaves far too many unanswered questions. Such a cautious approach might have been warranted 20 years ago — or even 10 years ago — but certainly not now.
The dissents are all over the place. Several focus on property, with Justice Thomas stating: “The organizing constitutional idea of the founding era, by contrast, was property.” Justice Gorsuch (writing in dissent, though it should probably be a concurring opinion) wants to do away with Katz as well as the Third Party Doctrine and replace it with something else — a test that is property-based yet understands “property” in a broader manner:
It seems to me entirely possible a person’s cell-site data could qualify as his papers or effects under existing law. Yes, the telephone carrier holds the information. But 47 U. S. C. §222 designates a customer’s cell-site location information as “customer proprietary network information” (CPNI), §222(h)(1)(A), and gives customers certain rights to control use of and access to CPNI about themselves.
I don’t think property is the right thing to focus on. The Fourth Amendment limits the government to reasonable searches and provides judicial oversight not to vindicate property interests, but to regulate government power. The Framers were most concerned with general warrants that authorized dragnet-like searches. With government searches, they were worried about excessive government power to pry into their activities. The fact that the Fourth Amendment mentions physical things (“persons, houses, papers, and effects”) is because there weren’t digital records at the time. The list of “persons, houses, papers, and effects” is meant to be a broad inclusive list, not a way to narrow the scope of the Fourth Amendment. The key part of the Fourth Amendment is its prohibition on “unreasonable” searches and seizures. The Fourth Amendment uses reasonableness as its focus, a concept that is flexible and widely-encompassing.
In an essay I wrote a number of years ago, Fourth Amendment Pragmatism, 51 Boston College Law Review 1511 (2010), I argued:
We should sidestep the contentious debate about expectations of privacy — or about any other specific value as a trigger for Fourth Amendment protection. Instead, whenever a particular government information gathering activity creates problems of reasonable significance, the Fourth Amendment should require regulation and oversight. These problems not only involve invasion of privacy, but also chilling of free speech, free association, freedom of belief, and consumption of ideas. They can involve inadequately constrained government power, lack of accountability of law enforcement officials, and excessive police discretion, among other things. The Fourth Amendment should provide coverage whenever any of these problems might occur.
The Third Party Doctrine has plagued Fourth Amendment jurisprudence for roughly 40 years. The Supreme Court should have overruled the Third Party Doctrine or at least carved out a greater chunk of it. Carpenter leaves open the door for more curtailment of the Third Party Doctrine in the future, but for now, it has left Fourth Amendment law needlessly unresolved and uncertain.
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy and data security training. He also posts at his blog at LinkedIn, which has more than 1 million followers.
Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum (Oct. 3-5, 2018 in Washington, DC), an annual event designed for seasoned professionals.