Carpenter v. United States

Carpenter v. United States, No. 16-402, 585 U.S. ____ (2018), was a landmark United States Supreme Court case concerning the privacy of historical cellphone location records.[1] The Court held, in a 5–4 decision authored by Chief Justice Roberts, that the government violates the Fourth Amendment to the United States Constitution by accessing historical records containing the physical locations of cellphones without a search warrant.

Carpenter v. United States
Argued November 29, 2017
Decided June 22, 2018
Full case nameTimothy Ivory Carpenter v. United States of America
Docket no.16-402
Citations585 U.S. ___ (more)
138 S. Ct. 2206; 201 L. Ed. 2d 507
ArgumentOral argument
Opinion announcementOpinion announcement
Case history
PriorA jury in the District Court for the Eastern District of Michigan convicted Timothy Carpenter of armed robbery. The conviction was affirmed by Sixth Circuit Court of Appeals, United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016); cert. granted, 137 S. Ct. 2211 (2017).
Holding
Government acquisition of cell-site records is a Fourth Amendment search, and, thus, generally requires a warrant.
Court membership
Chief Justice
John Roberts
Associate Justices
Anthony Kennedy · Clarence Thomas
Ruth Bader Ginsburg · Stephen Breyer
Samuel Alito · Sonia Sotomayor
Elena Kagan · Neil Gorsuch
Case opinions
MajorityRoberts, joined by Ginsburg, Breyer, Sotomayor, Kagan
DissentKennedy, joined by Thomas, Alito
DissentThomas
DissentAlito, joined by Thomas
DissentGorsuch

Prior to Carpenter, government entities could obtain cellphone location records by claiming the information was required as part of an investigation. After Carpenter, government entities must obtain a warrant to access the information. The decision overturned portions of 20th century legislation and case law when nearly all US homes had landline phones in favor of constitutional rights stemming from technological advances of cellphones in the early 21st century. The ruling was very narrow and did not otherwise change the third-party doctrine related to other business records that might incidentally reveal location information, nor overrule prior decisions concerning conventional surveillance techniques and tools such as security cameras. The Court did not expand its ruling on other matters related to cellphones not presented in Carpenter, including real-time cell site location information (CSLI) or "tower dumps" (a download of information about all the devices that connected to a particular cell site during a particular interval). The opinion also did not consider other collection techniques involving foreign affairs or national security.

Background

Cell site location information (CSLI)

Third-party wireless service providers (such as AT&T, Sprint, T-Mobile, and Verizon) are able to find the location of cell phones through either global positioning system (GPS) data or cell site location information (CSLI). CSLI is cell phone information captured by nearby cell towers; and this information is able to triangulate, or pinpoint, the location of cell phones.[2] Third-party service providers capture and store this data for business purposes, such as troubleshooting, maximizing network efficiencies and to determining whether to charge customers roaming fees for particular calls.[3] The data can also provide the historical movements of a cellphone. Thus, anyone with access to this data has the ability to know where the phone has been and what other cell phones were in the same area at a given time. Assuming cell phone owners travel with their cellphones, this data can theoretically provide every place a person has traveled and nearly everyone the person met.[4]

Comparison between an order for disclosure and a search warrant

In Carpenter, the Supreme Court determined what type of legal authorization is required by a government entity to compel third-party wireless service providers to turn over historical records containing the physical locations of cellphones. Attorneys for Carpenter argued that the authorization should be a search warrant. Attorneys for the United States argued that the authorization should be a court order for disclosure. Requirements to obtain an "order for disclosure" are less stringent than the requirements to obtain a warrant.

  • Court order for disclosure: An order for disclosure is a type of court order typically instructing a third party to turn over information in its possession related to an investigation.[5] To obtain an order for disclosure from a court, a governmental entity must provide specific and articulable facts showing that there are reasonable grounds to believe that the information sought is relevant and material to an ongoing criminal investigation. Government entities are not required to show probable cause to obtain an order for disclosure.[6]
  • Search warrant: Under the Fourth Amendment to the United States Constitution, people have the right to be free from unreasonable searches of their "persons, houses, papers, and effects" unless the government entity obtains a search warrant. To obtain a search warrant, the government entity must show probable cause. Probable cause to search exists when facts and circumstances known to the government entity provide the basis for a reasonable person to believe that a crime was committed and the items to be searched are relevant to the crime.

Third-party doctrine

Prior to Carpenter, the Supreme Court consistently held that a person had no legitimate expectation of privacy in regard to information voluntarily turned over to third parties, and therefore a search warrant was not required to obtain this information. This legal theory is known as the third-party doctrine, established by the Supreme Court cases United States v. Miller (1976), which determined that bank records were not subject to expectation of privacy, and Smith v. Maryland (1979), which determined the rights of individuals with regard to phone communications [7][8]

In particular, Smith was a landmark decision by the Court and has guided the federal courts ever since on questions related to privacy and phones.[9] The Court held in Smith that the government may not eavesdrop on a phone call, even one placed from a public phone booth; however, the phone numbers the person dialed on his phone could be obtained without a warrant. The Court also determined that the Fourth Amendment does not protect the public from the government obtaining information necessary to get communications from point A to point B. For example, without a warrant the government could obtain from a letter or package the sender, receiver, originating and delivery addresses, package size, and weight; however, the government was required to obtain a warrant before opening the package or letter to obtain its contents.[10]

The Stored Communications Act

In 1986, the United States Congress passed the Stored Communications Act (codified at 18 USC Chapter 121 §§ 2701–2712), which governs the privacy of stored Internet communications in the United States. The Act protects the personal information that is stored by certain providers, such as electronic communication and remote computing service providers. It prohibits these service providers "from knowingly disclosing the contents of customers’ electronic communications or subscriber records",[11] but "a provider is required to disclose the information to a U.S. government agent or agency," if they obtain a warrant first.[12] Section 2703 (18 USC § 2703) provides the rules that the government must follow in order to compel a third-party service provider to disclose "customer or subscriber" content and non-content information.[13] Prior to passage of the Stored Communications Act, many courts were reluctant to issue orders for disclosure that allowed the government to obtain data held by third parties; but section (d) of this act required a judge to issue a court order for disclosure whenever the federal government showed that the requested information was relevant to a criminal investigation.[14]

Public adoption of smartphone technology

In the 2010s, cellphones, particularly smartphones, had become an important instrument for nearly every person in the United States. By 2016, over 95% of Americans owned a cellphone.[15] Many applications, such as GPS navigation and location tools, required the cellphone to send and receive information constantly, including the exact location of the cellphone. As technology advanced in the 21st century, the Court began to back away from its 20th century third-party doctrine. In 2014, the Supreme Court unanimously ruled in Riley v. California that the warrantless search and seizure of digital contents of a cellphone during an arrest is unconstitutional.[16] In its decision, the Court recognized that the public's adoption of cellphones, combined with their capacity to hold vast quantities of detailed personal information, makes them vastly different from the old analog phones.[17]

In 2012, the Court ruled in United States v. Jones that the government is prohibited from entering private property to attach a GPS tracker to a suspect's car without a valid warrant. Foreshadowing Carpenter, Justice Sotomayor used her concurrence in Jones to express her discomfort with the third-party doctrine:

More fundamentally, it may 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.[18]

Facts of the case

Between December 2010 and March 2011, several individuals in the Detroit, Michigan, area conspired and participated in armed robberies at RadioShack and T-Mobile stores in Michigan and Ohio. When the robbers entered the store, they brandished their guns, ordered customers and employees to the back of the store, and told the employees to fill their bags with new smartphones.[19]

In April 2011, four of the robbers were captured and arrested. (The petitioner, Timothy Carpenter, was not among the group of arrestees.) One of those arrested confessed and turned over his phone so that FBI agents could review the calls made from his phone around the time of the robberies. Soon afterwards, a magistrate judge, in accordance with the Stored Communications Act, granted the FBI's request to obtain "transactional records" from various wireless carriers for 16 different phone numbers for "[a]ll subscriber information, toll records and call detail records including listed and unlisted numbers dialed or otherwise transmitted to and from [the] target telephones... as well as cell site information for the target telephones at call origination and at call termination for incoming and outgoing calls[.]" The government was able to obtain a court order before gaining access to the information; prosecutors only had to show that they were seeking evidence relevant to a criminal investigation. Getting a search warrant requires the government to prove probable cause which is harder to obtain because it requires more specific information.[20] The 16 different phone numbers called or received by the confessed robber around the time of the robberies were not sufficient evidence to establish probable cause; however, it was sufficient evidence under the Stored Communications Act, which requires only "that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation."[21]

From the historical cell-site records, which the government tracked Carpenter's location (CSLI) for 127 days the government was able to determine that Carpenter's cellphone communicated with cell towers at the time and from this information, the government was able to determine that Carpenter was within a two-mile radius of four robberies. Using this information, the government charged and arrested Carpenter. A jury later convicted Carpenter on several counts of aiding and abetting a robbery that affected interstate commerce and another count of aiding and abetting the use or carriage of a firearm during a federal crime of violence. Carpenter was sentenced by Judge Sean Cox of the United States District Court for the Eastern District of Michigan to 1395 months, or 116.25 years, in federal prison.[22]

Appeal before the Sixth Circuit

Carpenter appealed his conviction and sentence to the United States Court of Appeals for the Sixth Circuit. A three-judge panel heard the case on October 14, 2015. On April 13, 2016, Judge Raymond Kethledge delivered the opinion of the Court, affirming Carpenter's conviction and sentence.[23]

The Sixth Circuit relied on the Supreme Court's guidance from the Supreme Court's 1979 decision in Smith v. Maryland to clarify that only the content of a person's communication is protected by the Fourth Amendment. The Court explained that "cell-site data — like mailing addresses, phone numbers, and IP addresses — are information that facilitate personal communications, rather than part of the content of those communications themselves." Furthermore, the Court determined that the government obtained information from not Carpenter but the service provider's business records. Therefore, the government's collection of the service provider's business records did not constitute a "search" of Carpenter under the Fourth Amendment and so did not require a warrant.[24]

Judge Jane Branstetter Stranch dissented from the majority's conclusion that the collection of the service provider's business records did not constitute a search. In her dissent, Judge Stranch states, "this case involves tracking physical location through cell towers and a personal phone, a device routinely carried on the individual's person; it also involves the compelled provision of records that reflect such tracking. In light of the personal tracking concerns articulated in our precedent, I am not convinced that the situation before us can be addressed appropriately with a test primarily used to obtain business records such as credit card purchases — records that do not necessarily reflect personal location. And it seems to me that the business records test is ill suited to address the issues regarding personal location that are before us."[25]

Supreme Court

Grant of certiorari and oral argument
The Supreme Court Justices presiding over the Carpenter case. Front row (left to right): Ruth Bader Ginsburg, Anthony Kennedy, John Roberts (Chief Justice), Clarence Thomas, and Stephen Breyer. Back row (left to right): Elena Kagan, Samuel A. Alito, Sonia Sotomayor, and Neil Gorsuch.

Carpenter petitioned for a writ of certiorari on September 26, 2016.[26] On June 5, 2017, the Supreme Court agreed to review the case when it granted Carpenter's petition for writ of certiorari.[27] Twenty amicus curiae briefs were filed by organizations, scholars, and corporations in this case.[28] The Supreme Court heard Oral arguments on November 29, 2017.[29] Nathan Freed Wessler, a staff attorney with the ACLU Speech, Privacy, and Technology Project, argued on behalf of Carpenter.[30] Michael Dreeben, the Deputy Solicitor General in charge of the US Department of Justice criminal docket before the Supreme Court, argued on behalf of the United States. While the Court reviewed the case, some considered Carpenter to be the most important Fourth Amendment case before the Supreme Court in a generation.[31][32]

Opinion of the Court

The Court issued its decision on June 22, 2018, with the court split 5–4. Chief Justice Roberts wrote the majority opinion. Associate Justices Ginsburg, Breyer, Sotomayor, and Kagan joined Roberts' opinion. The majority determined that the third-party doctrine applied to telephone communications in Smith v. Maryland could not be applied to cellphone technology and ruled that the government must obtain a warrant in order to access historical cellphone records. Roberts argued that technology "has afforded law enforcement a powerful new tool to carry out its important responsibilities. At the same time, this tool risks Government encroachment of the sort the Framers [of the US Constitution], after consulting the lessons of history, drafted the Fourth Amendment to prevent."[33] The majority adds,

[S]eismic shifts in digital technology [] made possible the tracking of not only Carpenter’s location but also everyone else’s, not for a short period but for years and years. Sprint Corporation and its competitors are not your typical witnesses. Unlike the nosy neighbor who keeps an eye on comings and goings, they are ever alert, and their memory is nearly infallible. There is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today.[34]

Roberts's opinion reasoned that the "detailed, encyclopedic, and effortlessly compiled" data used in tracking of a person by cell towers was qualitatively similar to that of using a Global Positioning System (GPS) tracking device as determined by Jones.[35] Roberts stressed that the decision is a very narrow ruling; it does not affect other parts of the third-party doctrine, such as banking records, nor does it prevent collection of cell tower data without a warrant in emergencies or for national security issues.[36]

Dissents

Justices Kennedy, Thomas, Alito, and Gorsuch each wrote dissenting opinions. Kennedy's dissent cautioned against the limitation on law enforcement, writing,

This case involves new technology, but the Court’s stark departure from relevant Fourth Amendment precedents and principles is, in my submission, unnecessary and incorrect, requiring this respectful dissent. The new rule the Court seems to formulate puts needed, reasonable, accepted, lawful, and congressionally authorized criminal investigations at serious risk in serious cases, often when law enforcement seeks to prevent the threat of violent crimes. And it places undue restrictions on the lawful and necessary enforcement powers exercised not only by the Federal Government, but also by law enforcement in every State and locality throughout the Nation. Adherence to this Court’s longstanding precedents and analytic framework would have been the proper and prudent way to resolve this case.[37]

Alito wrote in his dissent,

I share the Court’s concern about the effect of new technology on personal privacy, but I fear that today’s decision will do far more harm than good. The Court’s reasoning fractures two fundamental pillars of Fourth Amendment law, and in doing so, it guarantees a blizzard of litigation while threatening many legitimate and valuable investigative practices upon which law enforcement has rightfully come to rely.[38]

Although Gorsuch also wrote a dissent, his opinion is similar to a concurring opinion because he agreed with the majority's decision but disagreed with the majority's reasoning.[39] Gorsuch agreed that law enforcement agencies need a warrant to obtain cell phone data; however, he disagreed that the Fourth Amendment provides the right to a "reasonable expectation of privacy." Instead, Gorsuch argues that cell phone location records are the property of cell phone owners, and, under the Fourth Amendment, law enforcement agencies cannot search a person's property without a warrant. In 1967, the Supreme Court first suggested in Katz v. United States that the Fourth Amendment provides the right to a "reasonable expectation of privacy."[40] Gorsuch believes Katz was incorrectly decided because the original meaning of the Fourth Amendment does not provide for a "reasonable expectation of privacy." Instead, Gorsuch writes that the Fourth Amendment "grants you the right to invoke its guarantees whenever one of your protected things (your person, your house, your papers, or your effects) is unreasonably searched or seized. Period."[41] Thus, he argues that historical cell record data is the property of cell phone owners and cannot be searched without a warrant. Gorsuch also advocates that the Court should overturn the "reasonable expectation of privacy" doctrine suggested in Katz, as well as the "third-party doctrine" established in Smith and Miller because they are not consistent with the original meaning of the Fourth Amendment and lead to confusion and inconsistencies in the lower courts.[42]

Subsequent developments

Carpenter's case was reheard by the Sixth Circuit, who still ruled against Carpenter and sentenced him to 116 years in prison in June 2019. While Carpenter's lawyers argued that the cell phone tracking data should have been subject to the exclusionary rule and thrown out as material collected without a proper warrant under the Supreme Court's ruling, the judges believed that the FBI was acting in good faith with respect to collecting the data based on the law at the time the crimes were committed, and thus still allowed that evidence to be used against Carpenter. The Supreme Court has previously ruled in 2011 that such good faith exemptions to the exclusionary rule are permissible in Davis v. United States.[43]

See also

Cases

Topics

References
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  2. National Association of Criminal Defense Lawyers (June 7, 2016). "Cell Phone Location Tracking" (PDF). law.berkeley.edu. Retrieved June 23, 2018.
  3. Howe, Amy (June 5, 2017). "Justices to tackle cellphone data case next term". SCOTUSblog. Retrieved June 10, 2017.
  4. Jon Schuppe (June 22, 2018). "Big brother gets a little smaller with cellphone privacy ruling". NBCnews.com. Retrieved June 23, 2018.
  5. Oliver, Nancy K. "Location, Location, Location: Balancing Crime Fighting Needs and Privacy Rights." U. Balt. L. Rev. 42 (2012): 485, 490-491
  6. 18 U.S.C. § 2703(d)
  7. John Villasenor (December 30, 2013). "What You Need to Know about the Third-Party Doctrine". theatlantic.com. The Atlantic Monthly Group. Retrieved May 28, 2017.
  8. "Smith v. Maryland, 442 U.S. 735 (1979)". Scholar.google.com. Retrieved 2017-06-10.
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  10. Orin Kerr (June 5, 2017). "Supreme Court agrees to hear 'Carpenter v. United States,' the Fourth Amendment historical cell-site case". washingtonpost.com. The Washington Post. Retrieved June 10, 2017.
  11. Aleman, Kevin (April 22, 2015). "Stored Communications Act: Roadblock to Discovery - Law". law.fiu.edu. Retrieved May 30, 2018.
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  13. Kerr, Orin S. "A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending it." Geo. Wash. L. Rev. 72 (2003): 1208
  14. 18 U.S.C. § 2703(d)
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  27. "16-402 Carpenter v. United States" (PDF). supremecourt.gov. Retrieved 2017-06-10.
  28. "Carpenter v. United States". scotusblog.com. Retrieved 2018-05-28.
  29. "Argument Calendar For the Session Beginning November 27, 2017" (PDF). supremecourt.gov. Retrieved 2017-10-06.
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  39. "Neil Gorsuch Joins Sonia Sotomayor in Questioning the Third-Party Doctrine". reason.com. Reason Foundation. June 22, 2018. Retrieved June 22, 2018.
  40. "Katz v. United States, 389 U. S. 347, 361 (1967) (Harlan, J., concurring)". Scholar.google.com. Retrieved 2018-06-23.
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Further reading
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