Supreme Court Considers Personal Privacy in the 21st Century

We have sacrificed privacy for convenience in the digital age. Now, the Supreme Court must decide just how much privacy we have sacrificed.

The Supreme Court in Washington, DC. Drew Angerer/Getty Images

We have sacrificed privacy for convenience in the digital age. Now, it is up to the U.S. Supreme Court to decide just how much privacy we have sacrificed.

The high court recently heard oral arguments in one of the most closely-watched Fourth Amendment cases in years. The issue is one that impacts most Americans—when can law enforcement access the location data transmitted by our cell phones?

Not surprisingly, there is likely no easy answer.

While cell phones provide a treasure trove of information for criminal investigators, the potential for privacy violations is very real. In addition, existing Fourth Amendment precedent, which predates the digital age, can’t be easily applied to modern communications.

Privacy of Cell Phone Location Data

Every time we use our cell phones, the devices send out electronic signals to the closest relay tower. Cell phone companies then record the information, which includes where cell phone users were located when they placed a call, sent a text message or accessed the internet.

In Carpenter v. United States, the government sought and obtained more than five months of historical cell phone location records for petitioner Timothy Carpenter and several other suspects. The records were obtained during the course of an investigation into a series of armed robberies that occurred in southeastern Michigan and northwestern Ohio in 2010 and 2011.

Investigators sought disclosure of the cell phone data under the Stored Communications Act (SCA) rather than by securing a warrant. Under the SCA, a disclosure order does not require a finding of probable cause, but rather authorizes the issuance of a disclosure order whenever the government “offers specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.”

By cross-referencing the information in Carpenter’s call detail records with the location of cell sites operated by MetroPCS and Sprint, the government could deduce Carpenter’s location and movements at multiple points each day. Over Carpenter’s objection, the cell phone evidence was introduced at trial, and he was ultimately convicted of six robberies.

On appeal, a divided three-judge panel of the Sixth Circuit held that no search occurred under the Fourth Amendment because Carpenter had no reasonable expectation of privacy in cell phone location records held by his service provider. Writing for the majority, Judge Raymond Kethledge concluded that people do not have a reasonable expectation of privacy in cell-site location data because it is a business record of the service provider that reveals routing information rather than the contents of communications.

In support, Kethledge cited Smith v. Maryland, reasoning that like the dialed phone numbers conveyed to the phone company in Smith, people knowingly expose their location information to their service provider and therefore lack an expectation of privacy in it.

In her opinion concurring only with the judgement, Judge Jane Stranch argued that “the sheer quantity of sensitive information procured without a warrant in this case raises Fourth Amendment concerns of the type the Supreme Court… acknowledged in United States v. Jones.”

She added: “I do not think that treating the CSLI [cell-site location data] obtained as a ‘business record’ and applying that test addresses our circuit’s stated concern regarding long-term, comprehensive tracking of an individual’s location without a warrant.”

Data Privacy Issue Likely to Divide Supreme Court

The Supreme Court extended its scheduled time for oral arguments by more than 20 minutes, highlighting the significance and the complexity of the issues before the court.

The specific question the justices must decide is: “Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.”

Under the so-called “third-party doctrine,” the Supreme Court has previously held that certain records or information shared with third parties are not entitled to Fourth Amendment protection. The key question in Carpenter is whether cellphone users have an expectation of privacy in their location data. Justice Anthony Kennedy, who is often the swing vote in tight cases, noted that most Americans are aware about how much of their data is tracked.

“If we’re going to talk about normal expectations,” he commented, “it seems to me that there’s a much more normal expectation that businesses have your cellphone data.  I think everybody, almost everybody, knows that. If I know it, everybody does.”

However, given the wealth of information collected by cell phone companies, several justices expressed concern about the privacy implications of erasing all constitutional privacy protections. Of course, the more difficult question is where to draw the line.

The Supreme Court has until June to publish its decision. Given the issues before the court as well as its “blockbuster” potential, the justices are likely to take their time with this one.

Donald Scarinci is a managing partner at the law firm Scarinci Hollenbeck.

Supreme Court Considers Personal Privacy in the 21st Century