March 21, 2019 Articles

Carpenter v. United States: A Six-Month Retrospective

Is it the landmark privacy decision experts predicted?

By Eileen Rumfelt

In October 2018, a group of pro se individual plaintiffs in New York sought to enjoin implementation of the new Presidential Alert system, which allows the Federal Emergency Management Agency to convey emergency bulletins through mobile phones. The system works by sending emergency alerts to cell phone carriers, who then use their cell phone towers to push the alerts to their customers. Nicholas v. Trump, No. 1:18-cv-08828 (S.D.N.Y. filed Sept. 26, 2018). The plaintiffs based their argument for an injunction on the U.S. Supreme Court’s June decision in Carpenter v. United States, No. 16-402, 585 U.S. ____ (2018), arguing that the Presidential Alert allows the government to trespass on their devices in violation of their Fourth Amendment right to privacy. As those of us who received the October test alert know, the plaintiffs in Nicholas did not prevail on their initial Carpenter challenge. This puts them in good company with many criminal defendants who have attempted to suppress evidence under Carpenter. Although it is too soon to know definitively how Carpenter will be interpreted by the courts, thus far it has not been the seismic shift many predicted.

What Is Carpenter v. United States All About?

Carpenter v. United States addressed whether law enforcement officials can secure cell-site location information (CSLI) without a warrant issued on probable cause. Writing for the Court, Chief Justice Roberts opined that acquisition of historical CSLI is a Fourth Amendment search and therefore requires a warrant.

Carpenter was convicted of robbery after prosecutors presented data from cell phone towers tracking his movements and putting him in the vicinity of several robberies at the times they occurred. The government had obtained the CSLI by court order under the Stored Communications Act (SCA), 18 U.S.C. §2703, which requires a showing of specific and articulable facts that there are “reasonable grounds to believe” the records sought will aid an ongoing criminal investigation. Carpenter argued that the data collection constituted a search under the Fourth Amendment and required a criminal warrant supported by the higher “probable cause” standard.

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Under Supreme Court precedent, Katz v. United States, 389 U.S. 347 (1967), the Fourth Amendment, however, protects “people, not places.” Under Katz, a Fourth Amendment search occurs when a person seeks to preserve something as private and his or her expectation of privacy is one that society recognizes as reasonable. In Carpenter, the Court opined that Carpenter’s CSLI sits at the intersection of two lines of authority under this broad rubric. The first recognizes a reasonable expectation of privacy in a person’s physical location and movements. The second holds that a person loses privacy protections when he or she voluntarily gives information to a third party.

Are There Any Clues from the Carpenter Majority and Dissents?

Recognizing the pervasive and virtually involuntary intrusion of cell phone technology into every aspect of modern human life, the Court found that privacy considerations override any perceived privacy loss due to third-party involvement. In this narrow context only, the Court held that “[i]n light of the deeply revealing nature of CSLI, its depth, breadth and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection.” Justices Ginsburg, Breyer, Sotomayor, and Kagan joined the opinion of the Court.

Just as interesting and perhaps more telling for the future of privacy jurisprudence were the multiple dissenting opinions. Justice Kennedy focused primarily on the fact that the records at issue were exclusively within the possession, custody, or control of a third party, not the defendant who was claiming that his reasonable expectation of privacy had been violated. Justice Kennedy also emphasized the importance of the property-based underpinnings of the Fourth Amendment. Finally, Justice Kennedy raised concerns about the feasibility of the Court’s standard, as well as the wisdom of judicially interfering with an applicable standard already created by the legislature (the SCA).

Justice Thomas centered his attack on Katz as precedent, which he argued is untethered from, and unsupported by, the text of the Fourth Amendment. According to Justice Thomas, the focus of Fourth Amendment jurisprudence should be property rights, not privacy rights.

Writing that the Court’s decision “fractures two fundamental pillars of Fourth Amendment law,” Justice Alito argued that the Court improperly conflated an actual search with a court order for document production. He also found it “revolutionary” to extend an individual’s Fourth Amendment search rights to a third party’s property.

Justice Gorsuch also advocated for a return to the property-based roots of the Fourth Amendment. He argued that the established concept of “bailment” helps to overcome the difficult questions posed by increasingly personal individual data held by third parties. He also urged the Court to revisit the Fifth Amendment and consider whether its protections against self-incrimination might also serve to address problems raised by new technologies.

How Have Lower Courts Interpreted the Carpenter Opinion Thus Far?

The Carpenter Court did not specifically address whether its ruling should be applied retroactively. People v. Cutts, 2018 N.Y. Slip Op. 28353 (N.Y. Sup. Ct. N.Y Cty. Nov. 7, 2018). As an unsurprising corollary, the most immediate issue before the courts has been whether Carpenter operates retroactively to suppress evidence that had previously been admitted. The potential implications of this question are staggering: One commentator estimated that at least 250,000 CSLI searches occur yearly, totaling an estimated four million searches since the 2001 passage of the Patriot Act. See Susan Freiwald & Steven Wm. Smith, “The Carpenter Chronicle: A Near-Perfect Surveillance,” 132 Harv. L. Rev. 205, 232 (Nov. 2018).

Courts, thus far, have been consistent in denying requests to reconsider admitted CSLI. See United States v. Blake, No. 3:16CR111 (D. Conn. Aug. 20, 2018) (collecting authorities). The primary reason lies in the so-called Leon good-faith exception, applied when government actors collect evidence in reliance on binding precedent at the time of collection. See, e.g., United States v. Joiner, 899 F.3d 1199, 1204 (11th Cir. 2018). “While Carpenter is obviously controlling going forward, it can have no effect on cases where law enforcement acted in objectively reasonable good faith which includes searches conducted in reasonable reliance on subsequently invalidated statutes.” Id. (internal quotations and citations omitted). The theory for applying this exception is that “when the police act with an objectively ‘reasonable good-faith belief’ that their conduct is lawful, the ‘deterrence rational of suppression loses much of its force’ and exclusion cannot ‘pay its way.’” Blake, No. 3:16CR111 (quoting Davis v. United States, 564 U.S. 229, 238 (2011)). Before Carpenter, government actors were executing orders issued by courts under the federal SCA and thus under the good-faith belief they were acting lawfully. In addition, because Carpenter was decided by the Court without a circuit split, defendants had little to point to in the way of potential countervailing precedent that would signal uncertainty to law enforcement officials. See Freiwald & Smith, supra at 216; Blake, No. 3:16CR111.

Another developing issue is the extent to which the Carpenter decision will be extended to other technologies and fact patterns. Thus far, fairly conventional technologies such as video surveillance have easily passed muster since Carpenter. For example, in United States v. Kubasiak, the court addressed continuous video surveillance of a suspect’s backyard over a period of four months from a fixed camera on the neighbor’s property. No. 18-cr-120-pp (E.D. Wis. Oct. 5, 2018). The court found that such surveillance “did not present the kind of aggregate view of intimate details of the defendant’s every movement that concerned . . . the majority in Carpenter” and did not require a warrant. Id. The same federal court also addressed the use of pole cameras for surveillance and similarly held that they did not run afoul of Carpenter. United States v. Tirado, No. 16-CR-168 (E.D. Wis. Aug. 21, 2018).

It is true that Carpenter distinguished the short-term public tracking approved in previous cases from the long-term surveillance of a person’s every move allowed by new technologies such as GPS or CLSI. However, pole cameras are limited to a fixed location and capture only activities in camera view, as opposed to GPS, which can track an individual’s movement anywhere in the word.

Id. (internal quotations omitted).

Similarly, disclosure of an Internet protocol (IP) address under an SCA order also remains permissible under Carpenter. United States v. Monroe, C.R. No. 16-00055 (D.R.I. Nov. 1, 2018). “An IP address is one link held by a third party in a chain of information that may lead to a particular person. It does not reveal the kind of minutely detailed, historical portrait of the whole of a person’s physical movements that concerned the Supreme Court in Carpenter.” Id.

Perhaps most interesting is a recent Tennessee decision demonstrating a return to the property-based roots advocated by many of the dissenting Supreme Court justices. In United States v. Oakes, 320 F. Supp. 3d 956, 958 (M.D. Tenn. 2018), the court rejected a defendant’s attempt under Carpenter to contest the collection of CSLI from a phone not owned by the defendant. The court emphasized the property-based underpinnings of the Fourth Amendment and the requirement that the party have a “cognizable Fourth Amendment interest in the place searched.” Id. at 959. It then distinguished Carpenter on the grounds that the defendant had denied ownership of the phone, despite the fact that historical CSLI from it had been used to track his activity. Id.Carpenter says nothing about an enforceable Fourth Amendment privacy interest in a cell phone that a defendant does not know is tracking him or does not admit to possessing or controlling.” Id. at 960.

What Does the Future Hold under Carpenter?

As Justice Breyer noted at oral argument on Carpenter, “this is an open box. We know not where we go.” Michael Price, Nat’l Ass’n of Criminal Defense Lawyers, “Carpenter v. United States and the Future Fourth Amendment,” 42 Champion 48 (June 2018) (log-in required). As the “Internet of Things” expands to enable an increasingly wide swath of household and other devices to collect individualized data, so do the implications for collection of data from the third-party providers of the data. Given the law’s historical difficulty keeping up with the rapid advancement of technology, whether Carpenter’s holding is sufficiently broad to address these devices will undoubtedly be before our courts soon.

Although Carpenter set forth no clear test for deciding whether any given technology falls within its purview, at least one commentator reads the Carpenter decision as reinforcing a series of factors drawn from prior analyses of surveillance techniques. Freiwald & Smith, supra at 219–20. Under that proposed analysis, a court would evaluate whether the technique is (1) hidden or secret, (2) continuous, (3) indiscriminate, (4) intrusive (“deeply revealing”), and (5) inexpensive and efficient. Id. It remains to be seen whether a multifactor test such as this one will become the predominate analysis method for addressing Fourth Amendment searches in the context of new technologies.

While the Carpenter decision stands ostensibly as precedent in favor of individual privacy rights, courts have thus far been reluctant to extend its reach much beyond the precise fact pattern presented in it. Given that thorny privacy issues are emerging every day in the context of big data, the issue will inevitably be before the Court again, and a new framework for analysis may ultimately emerge.

Eileen Rumfelt is a member of Miller & Martin in its Atlanta, Georgia, office.

Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).