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ALERT: SCOTUS Rules for Fourth Amendment Protections in a Digital Privacy Case

July 25, 2018

On Friday June 22, 2018, the U.S. Supreme Court gave us a glimpse of the evolving privacy jurisprudence as it develops in our current era of incessant technological innovations which continue to challenge our understanding of privacy as we know it. In Timothy Ivory Carpenter v. United States, the Court found that the Fourth Amendment protecting the people, their houses, papers and effects against unreasonable searches and seizures from the government extends as a privacy protection to cell phone records conveying a person's physical location.  In the case, the government was able to connect Timothy Carpenter to a series of robberies by obtaining 127 days' worth of cell-site location information (CLSI) from wireless carriers.  Carpenter contested his conviction arguing that seizing the CLSI records without a warrant violated his Fourth Amendment rights. The lower courts found that a warrant was not required because the CLSI data fell within the third-party doctrine, a legal doctrine permitting the government in instances when a person has shared information with third parties to obtain the information without complying with the Fourth Amendment. However, the Supreme Court did not agree but instead found the third-party doctrine to not extend to CLSI data. Moreover, the Court held that when it comes to tracking the physical location of an individual, the person has a legitimate expectation of privacy and with such reasonable expectation, the Fourth Amendment protections apply against government seizures.

Although CLSI records constitute as business records of a third-party, the Court nodded to precedent when stating that it is the nature of the documents and the individual's expectation of legitimate privacy that makes the third-party doctrine not applicable. The Court found that CLSI records are qualitatively different from the types of records that the doctrine typically applies to. Based on the way that the CLSI is collected and done so retrospectively, the government was able to survey Carpenter's physical location for years, and even at moments when the cell phone was not in use. The Chief Justice thus concluded that with such data the government had "invaded Carpenter's reasonable expectation of privacy in the whole of his physical movements" and the seizure of the CLSI records would have required a warrant as appropriate under the Fourth Amendment.

This holding gives us some preliminary guidance for future cases where privacy interests will have to be balanced against more unconventional governmental reaches, reaches that are only now possibly due to the technological developments. The direct implications of the decision bear onto the government as the Fourth Amendment only protects against governmental intrusion. Where businesses stand with regards to the type of data that one would reasonably expect to be private is still uncertain. One reading of the decision could lead to further prohibitions on the government to intrude into business records that by nature implicate a legitimate privacy protection. This would give businesses the opportunity to provide more advanced privacy protections to individuals. Or the decision may open the course another way. Given the recent privacy scandals, like the harvesting of personal data from Facebook by Cambridge Analytica, the courts may expand Carpenter to mean that where there is an expectation of reasonable privacy, such privacy must be respected whether it'd be a business or the government. 

For more information, please contact Ted Schaer, CIPP/US at 

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