A current Supreme Court case that the ACLU claims “could make major strides in ensuring that Fourth Amendment Protections keep pace with advancing technology” began in 2011. During an investigation of several robberies in Detroit, law enforcement obtained the cell phone records, including archived location data, of suspect Timothy Carpenter. This information ultimately led to Carpenter’s conviction. There was no warrant obtained for this data, which Carpenter argued should make it inadmissible. However, precedent dictated that a warrant was not necessary, and that the petitioner’s information was obtained legally. Carpenter appealed this decision, and the case eventually made its way to the Sixth Circuit.
In fact, the precedent employed in this case goes back much farther than 2011. Two cases from the 1970s — specifically, United States v. Miller and Smith v. Maryland — set the standard for what is now referred to as third-party doctrine. Third-party doctrine dictates that once an individual shares information with a third party, they “giv[e] up any reasonable expectation that the information will remain private.” This doctrine resulted from a larger debate surrounding the difference “between the content of a communication and the information necessary to convey it.” A 1979 case, Smith v. Maryland, provides a concrete example of this distinction. In it, police obtained the phone records of a suspect without a warrant, which revealed who he had called and when, and later led to his conviction. While the police did not listen to the content of these phone calls, they did analyze the information involved in conveying it. The practical application of these measures means that police do not need a warrant to obtain information if it goes through a third party. Technologies of that era — like telephones, telegrams, and postal mail — fall neatly into this template, and these precedents have stood ever since.
However, technology has changed dramatically since then; even over the past decade, we have witnessed enormous strides. As an amicus brief defending Carpenter notes, several effects of these advancements should be taken into consideration: the prevalence of cell phones, the frequency and detail of location data being gathered, and the ability of law enforcement to obtain these records. Location data now has the ability to “pain[t] a revealing portrait of a person’s movements,” which blurs the line between content and the information used to convey it. Evolving technology makes cases that involve personal data and the Fourth Amendment more complex than ever, and many are arguing that these precedents are outdated.
The implications of this ruling are widespread, and have the potential to spring open law enforcement’s access to personal data without the necessity of a warrant. The ACLU and the Electronic Frontier Foundation are both keeping close watch on the proceedings because, as a SCOTUSblog writer points out, this case could determine the “limits the Fourth Amendment will impose on efforts by police to benefit from the significant technological advances in the 21st century.” Arguments were presented in late November 2017, and a decision will likely be made in 2018.
Tess Wilson works at the Carnegie Library of Pittsburgh, where she connects patrons with tools for community conversation and civic change. Her writing can be found on the YALSA Blog and on the Carnegie Library’s blog. In her spare time, she creates zines examining mental health concerns, volunteers with a local feminist makerspace, and tries to keep up with two dogs and a cat. She is a collector of anything from big dictionaries to small rocks, and her latest acquisitions were an MFA in Creative Writing of Poetry from Chatham University and an MLIS from the University of Pittsburgh. Find her on Twitter @tesskwg.