What do you know about the spy in your client’s pocket? Smartphones map our lives – and the Supreme Court’s re-examination of third-party doctrine of electronic data will have wide-ranging impacts on privacy rights.
By Aaron D. Weems, Family Lawyer
It is not hyperbole to say that technology offers continually evolving benefits and efficiencies in our daily lives and in the practice of law. The proliferation of smartphones, cellular service providers, and infrastructure creates the double-edged sword of constant access to the Internet and communication, with what Justice Sonia Sotomayor described as a “precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” United States v. Jones, 132 S. Ct. 945, 955 (Sotomayer, J. concurring). Without a doubt, this information and the increasing exactness with which it can produce a record of our activities is of great value in any number of commercial, criminal, and judicial capacities. The sacrifice of some level of privacy for the sake of the utility of smartphones seems to be a fait accompli.
The Birth of the Third-Party Doctrine
The law surrounding access to this information, however, evolved in the 1960s and 1970s through a series of cases resulting in the “third-party doctrine” for collected electronic data. This doctrine – rooted in the limited information created by the analog telephone system – was predicated on the idea that the use of the telephone was a public act and revealed certain information such as the location of your call and phone number to the service provider (i.e., the “third party”). This conscious, public act of using the telephone precluded Fourth Amendment protections to the collected information. The expectation of privacy for that information did not exist and access to this information did not require a warrant.
The crescendo of technological advances and device proliferation in recent years, as seen in the Supreme Court case of Carpenter v. United States (No. 16-402), has outpaced the law on this issue, and this appeal from the Sixth Circuit hopes to recalibrate our legal system’s consideration of electronic data privacy and its accessibility as evidence. Pen registers of the analog telephone system simply do not compare in form or function to cellular site location information.
The Scope of Accessible Information
The case of Carpenter v. United States addresses the 2011 criminal conviction of the ringleader of a series of cell-phone store armed robberies in Ohio and Michigan. His conviction was based, in part, on cellular site data obtained from the cell-phone service provider by a “disclosure order” pursuant to the Stored Communications Act (18 U.S.C. § 2703). The cellular site data tied Carpenter’s personal cell phone to the locations of several armed robberies. He was sentenced to 1,395 months in prison for these crimes.
The Stored Communications Act provides for the use of warrants and subpoenas, but the disclosure order procedure utilized in the Carpenter case requires that the government had to offer “specific and articulable facts showing there were reasonable grounds to believe that… electronic records… are relevant and material in an ongoing criminal investigation.” This standard is considerably less rigorous than the probable cause standard needed for a warrant, yet it has the potential for producing a considerable amount of personal information – including that well beyond the scope of the case. This is even more true now than it was in 2011: since Carpenter’s conviction, the amount of cell service infrastructure has increased to the point that much more specific geographical locations can be established, and the amount and type of data stored on these systems (i.e., text messages, pictures, videos) has broadened considerably.
New Privacy Concerns Impact Third-Party Doctrine
Carpenter’s conviction at the trial level relied, in part, on the “third-party doctrine” applying and that short-term, real-time tracking of a suspect’s cell phone is not a Fourth Amendment search. On appeal, the question is whether a reasonable privacy expectation exists for cell phone location records held by the service provider. The Circuits are split in their decisions as to whether a reasonable expectation of privacy exists with respect to cellular site data, and the Sixth Circuit split in their decision, finding that no reasonable expectation existed since it is comparable to a business record of the service provider that reveals “routing information” rather than the contents of the communication. This is consistent with the long-standing “third-party doctrine” of analog telephone calls. Though concurring in the conviction, Judge Jane Bransetter Stranch of the Sixth Circuit highlighted Justice Sotomayor’s analysis from United States v. Jones and drew a sharp distinction between a business record and a record that carries with it Fourth Amendment issues through its utility in tracking an individual.
Quite simply, if the courts treat cell phone location data as a business record and allow access through means other than the warrant process, its production and admission into evidence becomes easier. The Carpenter case has the potential for the Supreme Court to reinterpret the “third-party doctrine” and clarify the level of privacy individuals should expect for their electronic data. The Supreme Court’s decision in this case will undoubtedly shape how we approach obtaining and applying electronic data for years to come.
Aaron Weems is a partner in Fox Rothschild’s litigation department. He primarily focuses on matrimonial law cases in Philadelphia, including advising clients on matrimonial law issues affecting their business succession plans. www.foxrothschild.com
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