In Carpenter v. United States, Timothy Carpenter participated in a string of armed robberies
in 2011.
He and his co-conspirators were robbing a string of Radio Shack and T-Mobile stores,
ironically for cell phones.
And later, one of the co-conspirators, gave his personal cell phone number to the FBI,
and the FBI then under the Stored Communications Act was able to obtain Carpenter's location
information, which is conveyed via his cell phone every time you make or receive a call.
The main question before the court in Carpenter was whether an individual has a reasonable
expectation of privacy in the data conveyed day-to-day via their cell phone.
So the Supreme Court ruled 5-4 that the location data used to convict Timothy Carpenter, which
was accessed by law enforcement through the third-party provider, was subject to a warrant,
that a subpoena under the Stored Communications Act was not enough to access that data.
In his dissent, Justice Gorsuch argued that Timothy Carpenter had a property interest
in the data conveyed by his cell phone to his third-party provider.
He argued that it is that property interest in data that makes it subject to Fourth Amendment protection.
The majority opinion in Carpenter ruled that in order to enjoy the protections of the Fourth
Amendment, you shouldn't have to opt of modern society, that the protections in the Fourth
Amendment should apply to cell phone location data.
Two cases in the 1970s, United States v. Miller, and Smith v. Maryland, articulated the Third-Party
Doctrine for the first time, which is that when a person conveys information to a third-party
provider, that person has no reasonable expectation of privacy in that information.
Both of the cases rely upon the defendant voluntarily conveying that information.
For example, in Smith v. Maryland it was held that there's no reasonable expectation of
privacy in the numbers that are in a Pen Register because a person knew that that information
was being conveyed.
The same in Miller, although that was bank transactions.
When you go to a bank and cash a check or make a deposit or do anything that creates
a record there through the third party, then you have no reasonable expectation of privacy
in that transaction because you willingly and voluntarily convey that information.
Following these two cases, the court ruled that one has privacy in their day-to-day movements,
and the tracking of their movements by law enforcement.
And this was based largely on trespass-based theory.
In Jones, law enforcement agents had attached a GPS tracking device to the vehicle, and
that formed the basis of their reasoning in Jones was that trespass that occurred when
the law enforcement officer affixed a GPS device to the vehicle.
In the United States v. Carpenter, there were four justices who wrote dissenting opinions,
and Justice Gorsuch's opinion ... He really took issue with the fact that the Court did
not go far enough in rejecting the Third-Party Doctrine.
He criticized the Court for, as he said, "keeping Smith and Miller on life support."
Here he thinks that the Third-Party Doctrine has evolved in a way that is at odds with
the text of the Fourth Amendment.
As Gorsuch said in his dissent in Carpenter, "Even our most private documents, those that
in other eras we would have locked safely in a desk drawer or destroyed, now reside
on third-party servers.
Smith and Miller teach that the police can review all of this material, on the theory
that no one reasonably expects any of it will be kept private, but no one believes that,
if they ever did."
In United States v. Carpenter, we're discussing essentially the same type of tracking, the
same movements of the same data points, but they're conveyed unwittingly to a cell phone
provider, to a third party.
Whereas in Jones it required the attachment of physical hardware.
In his dissent, Justice Gorsuch argued that under the property rights-based theory of
the Fourth Amendment, Timothy Carpenter had a property interest in his cell phone data.
As he stated in his dissent, "The Amendment's protections do not depend on the breach of
some abstract expectation of privacy whose contours are left to the judicial imagination.
Much more concretely, it protects your person, your houses, papers, and effects.
Nor does your right to bring a Fourth Amendment claim depend on whether a judge happens to
agree that your subjective expectation of privacy is a ‘reasonable’ one.
Under its plain terms, the Amendment grants you the right to invoke its guarantees whenever
one of your protected beings, your person, your house, your paper, or your effects, is
unreasonably searched or seized.
Period."
So just as Gorsuch really seeks to move away from that reasonable expectation of privacy
analysis and towards his property-based approach, and in doing so he would move back closer
to the text of the Fourth Amendment.
Over the years since the 1970s, the Third-Party Doctrine, instead of being more of an articulation
of when there is and is not a reasonable expectation of privacy, has kind of become an exception
to the Fourth Amendment.
Justice Gorsuch's opinion is a good thing for those who are concerned about privacy.
Um, essentially he's arguing that the court didn't go far enough in discarding the Third-Party
Doctrine, and that the Third-Party Doctrine, as technology has evolved, has become irreconcilable
with the text of the Fourth Amendment.