Symposium: Justices poised to consider, or reconsider, Fourth Amendment doctrines as they assess the scope of privacy in a digital age

John Castellano is Deputy Executive Assistant District Attorney and Chief Appellate Attorney in the office of Richard A. Brown, District Attorney of Queens County, New York.

The Supreme Court’s grant of certiorari in United States v. Carpenter highlights the clash between established Fourth Amendment doctrines and what many argue are the heightened privacy concerns of a digital era. The court will consider the scope of the Fourth Amendment’s protection of information contained in a cellular carrier’s records that reflects the location of cell towers used to complete customers’ phone calls and convey their texts. At stake will be at least two traditional notions underlying the court’s Fourth Amendment jurisprudence. The first is the general understanding that information voluntarily exposed to others is not protected by the Fourth Amendment, and the second is the more specific “third-party doctrine,” which holds that government access to information collected by a private business in order to provide a service to a customer does not constitute a search.

In this case, the government obtained court orders under Section 2703 of the Stored Communications Act for a total of 127 days of historical cell-site information regarding phones used by defendant Timothy Carpenter, who had been named by an accomplice as the mastermind of a string of nine commercial burglaries committed in and around Detroit. As the government’s expert testified, the records provided the location of cell towers that handled the defendant’s calls and texts, and indicated that the defendant’s phone was within one-half to two miles of the specified tower and within a one-third or one-sixth radial wedge, or “sector,” of the tower. The U.S. Court of Appeals for the 6th Circuit applied the third-party doctrine to hold that the Fourth Amendment did not protect this information, because the records obtained were those of the cellphone provider and reflected information collected by the provider in order to provide a service to the defendant. The court of appeals also noted that cellphone customers generally understand that when they use their cellphones for calls or texts, they are employing nearby cell towers and thus providing information to the carrier, including their general whereabouts.

The issue may not be so clear cut for some members of the Supreme Court, however. In a 2011 concurrence in United States v. Jones, Justice Sonia Sotomayor wrote that, although the third-party doctrine was not at issue in that case, it might in the future “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.” And Justice Samuel Alito, writing for himself and three other members of the court, noted in Jones that long-term monitoring of specific GPS-location data could “impinge on expectations of privacy,” but suggested that legislative solutions might be best suited to balance these concerns with public safety in an era of dramatic technological change.

The way in which the Supreme Court resolves these issues in Carpenter will undoubtedly revolve around how the justices view the scope of the issue presented. If the question is, as some suggest, whether the Fourth Amendment does anything to regulate government access to the “nearly limitless” information stored by telecommunications companies and internet service providers, many of the justices are likely to be reluctant to sign on to an expansive application of traditional doctrines. But if the issue is confined to the particular type of information involved in this case, the specific privacy interests at stake, the judicial mechanism Congress provided to restrict access to the information and the legitimacy of the government’s interest in the information, the outcome may well be different.

The privacy concerns raised by the specific information at stake in this case may be far less significant than those attached to other types of information a digital consumer provides to carriers or internet providers. The information obtained in Carpenter’s case involved only the location of towers used to convey calls and messages, and not, notably, the content of any communication. As the 6th Circuit noted, in the telecommunications context, the Supreme Court has traditionally distinguished between content-related information and information about the mechanisms used to convey the message. And, whatever the precise contours of the line between “content” and “non-content,” in this case there seems little doubt that the information was not content-related.

Moreover, unlike the specific GPS coordinates in Jones, accurate to within 100 feet, the information in Carpenter was non-specific, placing the phone as far away as two miles from the towers, and only within a one-third or one-sixth sector of the tower. Nor is the tower identified in records like those at issue in this case necessarily the closest one to the caller, because two people making calls from the same car at the same time may be employing two different towers, depending on, among other things, whether one tower has reached its capacity.

This difference in specificity between GPS data and cell-site information would appear to be significant. Rather than allowing the government to observe what businesses or residences a phone subscriber visits, and thus, as Sotomayor feared, compile a “comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations,” the records in this case identified at best a general neighborhood or group of neighborhoods, which, in an urban context, potentially covers hundreds or thousands of businesses and residences.

Nor is the privacy interest in location information, something traditionally exposed to the public and observable by the government, greater than the privacy interest in other types of documents clearly covered by the third-party doctrine. Numbers dialed from a phone, for example, which are far more specific and in many ways more revealing than the location of cell towers, fall squarely within the third-party doctrine and may be accessed without resort to any court order, as the Supreme Court held in Smith v. Maryland. According to United States v. Miller, the same is true of bank records and other financial information, which many consider to be highly personal and private.

And although some litigants and commentators have challenged the voluntariness of a cellphone customer’s disclosure of location information, cellphone users, as the 6th Circuit noted, generally understand that the phone company completes calls by the use of cell towers and knows what towers are being used to complete a customer’s calls. Moreover, all carriers provide notice of their privacy policies, which routinely include warnings that information is collected in connection with the provision of a carrier’s services and that this information may be provided to law enforcement.

The notion that prosecutors routinely abuse their access to this type of information, effectively tracking the whereabouts of citizens for weeks or months and for little or no reason, lacks a legitimate foundation. For one thing, the government conducts no “tracking” when it gains access to this type of information: The phone company collects cell-site location information for its own purposes and the government, retrospectively, views it based on a court order. For another, prosecutors do not routinely access such information. In fact, in 2016, prosecutors in Queens, New York, the 10th most populous county in the nation with 2.3 million inhabitants, obtained historical cell-cite information only 92 times, each through a court order, out of the more than 54,000 prosecutions in the county that year. And most of those orders covered periods far less extensive than those in this case. Indeed, more than half of the Queens County orders covered 10 days or less, and an additional 22 percent covered 30 days or less. Only seven orders for the entire year exceeded 90 days, and most of those were issued in pattern robbery or burglary investigations like the one in Carpenter, in which a review of records over a longer time period was warranted.

Furthermore, prosecutors’ access to cell-site location information is limited by judicial intervention. The Stored Communications Act requires a court order based on specific and articulable facts establishing that the information requested is relevant and material to an investigation. Both the citizens affected and the time period covered by the records can be limited in this manner. This is precisely the type of statutory mechanism that Alito suggested in his concurrence in Jones would operate to protect any perceived privacy interest at stake. Indeed, subpoenas for potentially far more personal information, like bank information, credit card statements and call detail information, can be issued in most states without any such check.

Moreover, the legitimate interest of law enforcement in historical cell-site location information in certain cases is very compelling, because it provides an important investigative tool when it may be difficult or impossible to show probable cause. Orders may be used, for example, to obtain the location history of homicide victims to determine their whereabouts immediately prior to their deaths, thereby aiding in the investigation of relevant events and possible causes. Similarly, when multiple legitimate suspects could have motives for committing a crime, location information may exclude some or all of these suspects. Historical cell-site information can also be used to check the reliability of information provided by informants or contained in the statements of accomplices. And, when pattern crimes are alleged, review of cell-site location data can provide critical evidence of, for example, an individual’s commission of serial killings or a person’s participation in pattern robberies or burglaries like the one in this case, because presence at multiple crime scenes or other relevant locations over a period of many days or weeks is not likely to be mere coincidence. In this way, a Section 2703 order provides an essential investigative tool, often used in conjunction with subpoena requests and other investigative techniques, that imposes minimal intrusions on any legitimate expectations of privacy.

The Supreme Court’s decision in Carpenter will thus likely turn on how broadly the justices view the question presented in the case. Whatever the outcome, the Supreme Court’s decision is likely to be merely the opening salvo in the legal debate rather than a definitive resolution of the issues raised by law-enforcement access to cell-site location information.