On Wednesday, November 29th oral arguments in the case of Carpenter v. United States began in the Supreme Court of the United States. The Carpenter v. United States case could have huge implications for digital privacy in the United States. Some privacy rights activists are calling this case the biggest case on digital privacy rights of this century. The court’s opinion in this case will decide if the government is required to get a warrant in order to obtain cellular mobile location information. Law enforcement agencies are able to use cell site location information to track individuals who are carrying a mobile device like a cell phone or a tablet. In this case, law enforcement tracked Timothy Carpenter for 127 days, which revealed nearly 13,000 location points his device had been.
Timothy Carpenter is being represented by attorney Nathan Wessler of the American Civil Liberties Union (ACLU). Justice Samuel Alito and Justice Anthony Kennedy disagreed with Wessler’s contention that a warrant was required to obtain the cell site information, and the two justices argued that such information was no different than bank records, which can be obtained by law enforcement without a warrant. Justice Kennedy admitted that he lacked a good understanding of how cell phone technology works.
During the arguments before the court, a liberal justice, Justice Sonya Sotomayor, and a conservative judge, Justice Neil Gorsuch, both seemed to strongly in favor of digital privacy rights. Justice Gorsuch is the newest justice to join the Supreme Court, he was appointed to the court this year by President Donald Trump and his nomination was confirmed by the United States Senate. When Neil Gorsuch was a judge on the 10th Circuit Court of Appeals, he authored an opinion in a case where he ruled in favor of digital privacy rights in a case that involved a law enforcement search of an email. Justice Elena Kagan, who was appointed to the court in 2010 by President Barack Obama, asked Deputy Solicitor General Michael Dreeben how the Carpenter case differs from the 2012 Supreme Court case United States v. Jones. In the case of United States v. Jones law enforcement officers illegally placed a Global Position System (GPS) tracking device on Jones’ car without a warrant.
In that case the Supreme Court ruled that a warrant was required for law enforcement officers to be able to track people with a GPS tracking device. Deputy Solicitor General Michael Dreeben responded to Justice Kagan’s question by saying that the Carpenter case was different from the Jones case in that because the location records were obtained through a third party, the cellular carrier. The Supreme Court created what is known as the “Third Party Doctrine” in two cases made in the late 1970s, the 1976 case of United States v. Miller and the 1979 case of Smith v. Maryland. Under the third party doctrine the Supreme Court created, after a person discloses information to a third party, it is no longer protected by the 4th amendment.
In 1986 Congress passed the Stored Communications Act, which requires law enforcement to get a subpoena from a court in order to obtain data like cell site location from a third party. Privacy rights activists do not agree with the Supreme Court’s third party doctrine and the Stored Communications Act. Both lack a requirement for law enforcement to have probable cause and a warrant, as required by the 4th amendment, before they can access such information.
In August, the non-profit 4th amendment advocacy organization Restore the Fourth filed an amicus brief to the court. In that brief, an attorney with Restore the Fourth argued against the third party doctrine, and urged the court to recognize that people still have a reasonable expectation of privacy even once they have disclosed information to a third party, such as a cellular service provider. The brief also highlights the high risk of abuse from obtaining cell site location information without a warrant by law enforcement officers. Restore the Fourth also argues that cell site location information will reveal even more information about a person in the future. “This is due to the increasing density of tower locations, and the increased power of computers to algorithmically parse a given set of information on people’s locations to predict where they will be in the future,” Restore the Fourth stated on a post on their website.
It would appear most of the justices may be leaning towards defending digital privacy rights and applying 4th amendment protections to cell site location information. Such a ruling would be a huge victory for digital privacy rights in America. The court will rule on the case of Carpenter v. US by June 2018.