By Terence M. Durkin

For anyone concerned about the implications of technological innovation on individual privacy, keep an eye out for the Supreme Court’s highly anticipated decision in the case of Carpenter v. United States. While this case deals specifically with Fourth Amendment protections over cell site location information (CSLI) held by service providers, Carpenter may be one of the most consequential Fourth Amendment cases in years. The Doctrine requires an update.

Since the Supreme Court’s decision in Katz v. United States (1967), the Fourth Amendment doctrine has followed the “reasonable expectation of privacy” test set out in Justice Harlan’s concurrence.  Under Harlan’s standard, an individual must manifest a subjective expectation of privacy for protections to apply. An outgrowth of this standard is the third-party doctrine, under which individuals cannot subjectively expect privacy over certain data shared with third parties, just as one loses privacy rights when walking or talking in public.

CSLI held by cell providers identifies which cell towers an individual’s cellular communications go through, and the government in Carpenter used the defendant’s CSLI data to place him in the vicinity of multiple crimes. The Defendant argues that the court should apply the mosaic theory, suggested in United States v. Jones (2012), in which a certain amount of GPS information gathered by police would, in the aggregate, paint such a detailed picture of the individual that obtaining the gathered information would be considered a search. The mosaic theory, however, would create difficult issues of differentiating where and when gathered data becomes a search.

Rather than adopting another complicated doctrine, the Court should return to applying the terms of the Fourth Amendment. The steps of such a method would be to ask: (1) was there a search or seizure?, (2) if so, did the search or seizure pertain to the person or the person’s houses, papers, or effects?, and (3) if so, was it reasonable? Absent exigency, the government would be required to obtain a warrant.

Under this “Terms of the Fourth Amendment” method, the main question in Carpenter is whether the defendant or his cell provider owned his CSLI information. The third-party doctrine has obscured this analysis from the court in recent decades. One possible solution to this question is to look to the terms of the contract between the provider and the customer.  Often, such contracts promise to protect this information unless the government provides valid processes such as a warrant.

Returning to the terms of the Fourth Amendment jurisprudence would allow the court to make determinations about “reasonableness” more in line with the text of the Amendment. In Ex Parte Jackson (1878), for example, the Court concluded that concealing written papers in an opaque envelope provided Fourth Amendment protection to the envelope’s contents despite being given to a postal officer. Justice Butler’s dissent in Olmstead v. United States (1928), discussing the wiretapping of bootleggers, similarly argued that the contracts between telephone companies and users contemplate private use of the telephones and therefore the communications belong to the parties between whom they pass. Most recently, the majority decision in Katz (1967) found that the concealing of one’s voices in a phone booth creates a Fourth Amendment protection.

Whether or not Carpenter’s CSLI is found protected by the Fourth Amendment, the Court should consider returning to a simpler Fourth Amendment Doctrine that is able to take into account the extensive amount of personal data and information that is communicated over cellphones today. As the government’s ability to gather our personal information grows, so must our constitutional protections. None of the current Justices on the Supreme Court have taken part in a decision regarding the third-party doctrine, so more than the Justices CSLI is necessary to find where they stand on the issue.

Student Bio: Terence Durkin is a 2L at Suffolk University Law School. He is currently a staff member of the Journal of High Technology, Vice-President of Suffolk’s Federalist Society, and President of the Christian Fellowship. Terence holds a B.A. in Economics from Wesleyan University.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.

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