Supreme Court to Review Digital Privacy (Part 1)


In 1986, Congress passed an obscure statute called the Stored Communications Act [1] that has become much more relevant 30 years later. The U.S. Supreme Court will have two opportunities to help define the scope of digital privacy under a law enacted when cellphones and email hardly existed.

To obtain electronic communications, the government must obtain a warrant for any information that is held for 180 days or fewer by a computer service provider. This means the government must establish probable cause that the evidence sought is related to a crime. But for anything older than that, investigators need only a grand jury or administrative subpoena, along with informing the person whose communications are sought. That notification may be delayed by as much as 90 days if disclosure might have an adverse effect, such as destroying or tampering with evidence.

Back in 1986, Congress viewed communications over six months old to be abandoned and therefore subject to reduced protection, a notion that looks quaint today when emails and texts may be held for years.

Another provision of the Act allows investigators to obtain information from the provider about a subscriber to any electronic service, like cellphones, by seeking a court order based on “reasonable grounds to believe” that the records are relevant to a criminal investigation. This is a lower standard than probable cause, the usual requirement for a search warrant.

It is this lower threshold for getting information that is at issue in Carpenter [2], which the Supreme Court will hear in the upcoming October term.

In Carpenter, the government obtained orders directing wireless carriers to provide cell site location information showing where different cell phone numbers were located at the time of the crimes. Armed with data from various cell towers, prosecutors showed at trial that the defendants’ phones were a half-mile to two miles from the robberies, helping to link them to the actual perpetrators. The defendants sought to suppress that information, arguing that it constituted a search of their phones so that the reasonable grounds standard in the Stored Communications Act for the order did not meet the probable cause requirement of the Fourth Amendment. [3]

The United States Court of Appeals for the Sixth Circuit held [4] that “although the content of personal communications is private, the information necessary to get those communications from point A to point B is not.” Therefore, the defendants had no privacy interest in the information held by the carriers about their location and the constitutional probable cause requirement did not apply.

Carpenter brings into question the scope of the privacy protection in “persons, houses, papers and effects,” with respect to data generated by a person’s electronic devices. In Riley [5], a 2014 decision, the Court stated that cellphones are now “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” The Court found that a warrantless search of an arrestee’s cellphone was unconstitutional; explaining that what distinguishes the device from other items that might be found on a person that the police could look at “is their immense storage capacity.” But rummaging through the contents of a phone or computer is not necessarily the same as getting site information that is broadcast to the carrier, especially when a person may enable it by using an app like Find My Phone.

Similarly, in Jones [6], the Supreme Court found that the use of a GPS tracker attached to a car was a search governed by the Fourth Amendment.

In Carpenter, the justices will have to determine whether cell site data is different from a GPS tracker. The distinctions being: 1) a person’s location within about a one-mile radius may not be a sufficient invasion of privacy to come within the Fourth Amendment; and 2) nor does obtaining the location of a cellphone reveal the content of any communication.

[1] 18 U.S.C § 2073
[2] United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016), cert. granted, 17 Cal. Daily Op. Serv. 5214 (U.S. June 5, 2017)
[3] The Fourth Amendment to the United States Constitution provides for the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
[4] United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016), cert. granted, 17 Cal. Daily Op. Serv. 5214 (U.S. June 5, 2017)
[5] Riley v. California, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014)
[6] United States v. Jones, 565 U.S. 400, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012)

This blog was written by Ajay Jagtiani at Miles & Stockbridge.

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