Nathan Wessler for the petitioner, Michael Dreeben for the respondent.
Carpenter v. US has been dubbed one of the most influential Fourth Amendment cases of this era. According to Oyez:
In April 2011, police arrested four men in connection with a series of armed robberies. One of the men confessed to the crimes and gave the FBI his cell phone number and the numbers of the other participants. The FBI used this information to apply for three orders from magistrate judges to obtain “transactional records” for each of the phone numbers…Based on the cell-site evidence, the government charged Timothy Carpenter with, among other offenses, aiding and abetting robbery that affected interstate commerce, in violation of the Hobbs Act, 18 U.S.C. 1951. Carpenter moved to suppress the government’s cell-site evidence on Fourth Amendment grounds, arguing that the FBI needed a warrant based on probable cause to obtain the records. The district court denied the motion to suppress, and the Sixth Circuit affirmed.
Although the petitioner, Timothy Ivory Carpenter committed his crime many years ago, the role of digital technology in surveillance still is a pressing issue. Carpenter asks one question, “Does the warrantless search and seizure of cell phone records, which include the location and movements of cell phone users, violate the Fourth Amendment?”
At heart is a question of the third party doctrine. This doctrine states that any information that one gives to a third party becomes within the public interest, and therefore the government can demand, with a lesser-than-warrant standard, the information given. Time and time again this doctrine has been affirmed by the Supreme Court (SCOTUS), but also exceptions have been created, such as with the obtaining of medical records. In Bond and Ferguson, SCOTUS ruled that, even though medical records were transmitted through a third party, the hospital, they were exempted under the third party doctrine.
In the hearing, Carpenter makes a few key points.
- In the short term, you have no privacy interest in the disclosure of your location, as people can see you. However, in the long term, there is a certain privacy interest, as you can reasonably expect people will not follow you for a long period of time.
- People do not actively acquiesce to the transmission of their location data to a third party. Wessler argues that some transmissions can be involuntary, like an automatic data connection, as opposed to cashing a check, in which the casher is in full knowledge of his transaction.
- Third party doctrine is not law. It has had exceptions in the past.
- Now, data is even more precise. Now, location data can pinpoint you to mere meters, unlike in Carpenter’s time where data could not detect which shop on the corner you went to.
- This is not a subpoena case as in the traditional definition. It differs in two crucial aspects. One, records are selected rather than dumped. Two, there is opportunity for pre-compliance review and notice.
Conversely, US tries to make the point that location data falls under third party doctrine.
- Cell phone providers are witnesses.
- This is not content, as protected by Miller and Smith (ie. Emails), but routing data.
- The Fourth Amendment concerns its obtaining, not the content.
- There is no property interest that would subject it to the Fourth Amendment.
- The government is not monitoring directly (as in Jones) but obtaining records.
The key question posed by the arguments is: Do they qualify, such as in Bond and Ferguson, for a third party doctrine exemption?
There is no qualification for an exemption. In Bond and Ferguson, where the subject of the records, namely in relation to one’s health, has no public interest in general. Under normal circumstances, one cannot reasonably expect someone to non-consensually test for one’s health. Therefore, there is no reason for obtainers of those records to be able to disclose them under a lesser standard. However, location is in the public interest: when one walks outside, the public is able to see him in plain view. Furthermore, because of the freedoms granted to others, the ‘village snoop’, in Justice Alito’s words, is in his full right to be snooping around. There is no reason, therefore, that a phone, regardless of its memory fallibility, cannot send location data, especially because third party doctrine puts it even more in the public interest. Wessler’s argument of lack of acquiescence is very compelling. However, because there is a public interest in this type of data, acquiescence is not a contention needed. Furthermore, Wessler’s argument about the dumping of data is incorrect. A person’s financial history can be subpoenaed. Similarly, the data involved in this case is only related to locations of one person, meeting the specificity requirement in his argument.
Therefore, because there is no exemption, this case falls under third party doctrine, putting it in the public interest, and not violating the Fourth Amendment.