Daily Archives: August 1, 2017

John Castellano is Deputy Executive Assistant District Attorney and Chief Appellate Attorney in the office of Richard A. Brown, District Attorney of Queens County, New York.

The Supreme Courts grant of certiorari in United States v. Carpenter highlights the clash between established Fourth Amendment doctrines and what many argue are the heightened privacy concerns of a digital era. The court will consider the scope of the Fourth Amendments protection of information contained in a cellular carriers records that reflects the location of cell towers used to complete customers phone calls and convey their texts. At stake will be at least two traditional notions underlying the courts Fourth Amendment jurisprudence. The first is the general understanding that information voluntarily exposed to others is not protected by the Fourth Amendment, and the second is the more specific third-party doctrine, which holds that government access to information collected by a private business in order to provide a service to a customer does not constitute a search.

In this case, the government obtained court orders under Section 2703 of the Stored Communications Act for a total of 127 days of historical cell-site information regarding phones used by defendant Timothy Carpenter, who had been named by an accomplice as the mastermind of a string of nine commercial burglaries committed in and around Detroit. As the governments expert testified, the records provided the location of cell towers that handled the defendants calls and texts, and indicated that the defendants phone was within one-half to two miles of the specified tower and within a one-third or one-sixth radial wedge, or sector, of the tower. The U.S. Court of Appeals for the 6th Circuit applied the third-party doctrine to hold that the Fourth Amendment did not protect this information, because the records obtained were those of the cellphone provider and reflected information collected by the provider in order to provide a service to the defendant. The court of appeals also noted that cellphone customers generally understand that when they use their cellphones for calls or texts, they are employing nearby cell towers and thus providing information to the carrier, including their general whereabouts.

The issue may not be so clear cut for some members of the Supreme Court, however. In a 2011 concurrence in United States v. Jones, Justice Sonia Sotomayor wrote that, although the third-party doctrine was not at issue in that case, it might in the future be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. And Justice Samuel Alito, writing for himself and three other members of the court, noted in Jones that long-term monitoring of specific GPS-location data could impinge on expectations of privacy, but suggested that legislative solutions might be best suited to balance these concerns with public safety in an era of dramatic technological change.

The way in which the Supreme Court resolves these issues in Carpenter will undoubtedly revolve around how the justices view the scope of the issue presented. If the question is, as some suggest, whether the Fourth Amendment does anything to regulate government access to the nearly limitless information stored by telecommunications companies and internet service providers, many of the justices are likely to be reluctant to sign on to an expansive application of traditional doctrines. But if the issue is confined to the particular type of information involved in this case, the specific privacy interests at stake, the judicial mechanism Congress provided to restrict access to the information and the legitimacy of the governments interest in the information, the outcome may well be different.

The privacy concerns raised by the specific information at stake in this case may be far less significant than those attached to other types of information a digital consumer provides to carriers or internet providers. The information obtained in Carpenters case involved only the location of towers used to convey calls and messages, and not, notably, the content of any communication. As the 6th Circuit noted, in the telecommunications context, the Supreme Court has traditionally distinguished between content-related information and information about the mechanisms used to convey the message. And, whatever the precise contours of the line between content and non-content, in this case there seems little doubt that the information was not content-related.

Moreover, unlike the specific GPS coordinates in Jones, accurate to within 100 feet, the information in Carpenter was non-specific, placing the phone as far away as two miles from the towers, and only within a one-third or one-sixth sector of the tower. Nor is the tower identified in records like those at issue in this case necessarily the closest one to the caller, because two people making calls from the same car at the same time may be employing two different towers, depending on, among other things, whether one tower has reached its capacity.

This difference in specificity between GPS data and cell-site information would appear to be significant. Rather than allowing the government to observe what businesses or residences a phone subscriber visits, and thus, as Sotomayor feared, compile a comprehensive record of a persons public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations, the records in this case identified at best a general neighborhood or group of neighborhoods, which, in an urban context, potentially covers hundreds or thousands of businesses and residences.

Nor is the privacy interest in location information, something traditionally exposed to the public and observable by the government, greater than the privacy interest in other types of documents clearly covered by the third-party doctrine. Numbers dialed from a phone, for example, which are far more specific and in many ways more revealing than the location of cell towers, fall squarely within the third-party doctrine and may be accessed without resort to any court order, as the Supreme Court held in Smith v. Maryland. According to United States v. Miller, the same is true of bank records and other financial information, which many consider to be highly personal and private.

And although some litigants and commentators have challenged the voluntariness of a cellphone customers disclosure of location information, cellphone users, as the 6th Circuit noted, generally understand that the phone company completes calls by the use of cell towers and knows what towers are being used to complete a customers calls. Moreover, all carriers provide notice of their privacy policies, which routinely include warnings that information is collected in connection with the provision of a carriers services and that this information may be provided to law enforcement.

The notion that prosecutors routinely abuse their access to this type of information, effectively tracking the whereabouts of citizens for weeks or months and for little or no reason, lacks a legitimate foundation. For one thing, the government conducts no tracking when it gains access to this type of information: The phone company collects cell-site location information for its own purposes and the government, retrospectively, views it based on a court order. For another, prosecutors do not routinely access such information. In fact, in 2016, prosecutors in Queens, New York, the 10th most populous county in the nation with 2.3 million inhabitants, obtained historical cell-cite information only 92 times, each through a court order, out of the more than 54,000 prosecutions in the county that year. And most of those orders covered periods far less extensive than those in this case. Indeed, more than half of the Queens County orders covered 10 days or less, and an additional 22 percent covered 30 days or less. Only seven orders for the entire year exceeded 90 days, and most of those were issued in pattern robbery or burglary investigations like the one in Carpenter, in which a review of records over a longer time period was warranted.

Furthermore, prosecutors access to cell-site location information is limited by judicial intervention. The Stored Communications Act requires a court order based on specific and articulable facts establishing that the information requested is relevant and material to an investigation. Both the citizens affected and the time period covered by the records can be limited in this manner. This is precisely the type of statutory mechanism that Alito suggested in his concurrence in Jones would operate to protect any perceived privacy interest at stake. Indeed, subpoenas for potentially far more personal information, like bank information, credit card statements and call detail information, can be issued in most states without any such check.

Moreover, the legitimate interest of law enforcement in historical cell-site location information in certain cases is very compelling, because it provides an important investigative tool when it may be difficult or impossible to show probable cause. Orders may be used, for example, to obtain the location history of homicide victims to determine their whereabouts immediately prior to their deaths, thereby aiding in the investigation of relevant events and possible causes. Similarly, when multiple legitimate suspects could have motives for committing a crime, location information may exclude some or all of these suspects. Historical cell-site information can also be used to check the reliability of information provided by informants or contained in the statements of accomplices. And, when pattern crimes are alleged, review of cell-site location data can provide critical evidence of, for example, an individuals commission of serial killings or a persons participation in pattern robberies or burglaries like the one in this case, because presence at multiple crime scenes or other relevant locations over a period of many days or weeks is not likely to be mere coincidence. In this way, a Section 2703 order provides an essential investigative tool, often used in conjunction with subpoena requests and other investigative techniques, that imposes minimal intrusions on any legitimate expectations of privacy.

The Supreme Courts decision in Carpenter will thus likely turn on how broadly the justices view the question presented in the case. Whatever the outcome, the Supreme Courts decision is likely to be merely the opening salvo in the legal debate rather than a definitive resolution of the issues raised by law-enforcement access to cell-site location information.

Posted in Carpenter v. U.S., Summer symposium on Carpenter v. United States, Featured, Merits Cases

Recommended Citation: John Castellano, Symposium: Justices poised to consider, or reconsider, Fourth Amendment doctrines as they assess the scope of privacy in a digital age, SCOTUSblog (Aug. 1, 2017, 2:49 PM), http://www.scotusblog.com/2017/08/symposium-justices-poised-consider-reconsider-fourth-amendment-doctrines-assess-scope-privacy-digital-age/

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Symposium: Justices poised to consider, or reconsider, Fourth Amendment doctrines as they assess the scope of ... - SCOTUSblog (blog)

In 1976, in United States v. Miller, the Supreme Court ruled that the bank records of a man accused of running an illegal whiskey-distilling operation were not obtained in violation of the Fourth Amendment, even though law-enforcement officials did not have a warrant, because the bank records contained only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business. Three years later, in Smith v. Maryland, the justices ruled that no Fourth Amendment violation had occurred when, without a warrant and at the request of the police, the phone company installed a device to record all of the phone numbers that a robbery suspect called from his home, leading to his arrest.

These cases are often cited as examples of the third-party doctrine the idea that the Fourth Amendment does not protect records or information that someone voluntarily shares with someone or something else. But does the third-party doctrine apply the same way to cellphones, which only became commercially available a few years after the courts decisions in Miller and Smith? Justice Sonia Sotomayor, at least, has suggested that it should not: In 2012, she argued that the doctrine is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. That question is at the heart of Carpenter v. United States, in which the justices will hear oral argument this fall.

The petitioner in the case, Timothy Carpenter, was accused of being the mastermind behind a series of armed robberies in Ohio and Michigan. Law-enforcement officials asked cellphone providers for the phone records for 16 phone numbers, including Carpenters, that had been given to them by one of Carpenters partners in crime. They relied on the Stored Communications Act, a 1986 law that allows phone companies to disclose records when the government provides them with specific and articulable facts showing that there are reasonable grounds to believe that records at issue are relevant and material to an ongoing criminal investigation; the government does not need to show that there is probable cause to believe that a crime has been committed. Such requests have become a common tool for police officers investigating crimes according to Carpenter, they are made in thousands of cases each year.

Investigators received several months worth of historical cell-site records, which indicate which cell towers a cellphone connected with while it was in use. Based on those records, investigators were able to determine that, over a five-month span in 2010 and 2011, Carpenters cellphone connected with cell towers in the vicinity of the robberies. After his arrest, Carpenter argued that the records should be suppressed because the government had not obtained a warrant for them. But the district court disagreed, and Carpenter was convicted and sentenced to almost 116 years in prison.

A federal appeals court upheld his convictions. Applying the Supreme Courts decision in Smith (among others), it ruled that the government was not required to obtain a warrant because Carpenter could not have expected that cellphone records maintained by his service provider would be kept private. Carpenter then asked the justices to weigh in, which they agreed to do in June.

Carpenter contends that the disclosure of his cellphone records to the federal government was a search for which the government needed a warrant. At the heart of this argument is the idea that, as Sotomayor has suggested, times have changed, and cellphones are different from the more primitive phone technology and bank records at issue in Smith and Miller. Therefore, he tells the justices, they should not mechanically apply their earlier decisions, but should instead use a more nuanced approach that accounts for both the volume and precision of the data that is now available for cellphones. And, in particular, the fact that a third party, such as Carpenters cellphone provider, has access to his cellphone records does not automatically mean that he cannot expect those records to remain private.

But even under Smith and Miller, Carpenter continues, he would still prevail. To determine whether he can expect his records to be kept private, he contends, the justices should look at whether he voluntarily gave the records to his service provider. Here, he stresses, he did not do so in any meaningful way, because he did not affirmatively give information about his location to his service provider by either making or receiving a call. Moreover, he suggests, another factor that the justices should consider his privacy interest in the information revealed by the records weighs heavily in his favor. Most people have their phones with them all the time, he emphasizes, which means that cellphone records can show where someone was and what he was doing at any given time, even in places most notably, at home where he would expect privacy.

In a friend of the court brief, the Electronic Frontier Foundation and other privacy groups echo Carpenters arguments. In particular, the groups highlight how times have changed since the courts third-party-doctrine decisions in the 1970s. Here, they observe, the SCA gives law-enforcement officials access to much more information than just the few days worth of dialed phone numbers at issue in Smith. Moreover, the data that can be obtained under the SCA are generated simply by the act of carrying a phone that has been turned on: It is created whenever the phone tries to send and receive information, generally without forethought or conscious action by the owner.

For the federal government, this case is a straightforward one, regardless of any new technologies like cellphones that may be involved. First, the government contends, Carpenter does not have any ownership interest in the cellphone records turned over to police by his service providers. Those providers, the government reasons, simply collected the information for their own purposes, which included a desire to find weak spots in their network and to determine whether roaming charges should apply.

Second, the government adds, Carpenter does not have any reasonable expectation of privacy in the cellphone records, which only tell the government where his cellphone connected with the towers, without giving it any information about what was said in his calls a core distinction, according to the government. What Carpenters argument really boils down to, the government argues, is that law-enforcement officers could infer from his service-providers records that he was near a particular cell tower at a particular time. But, the government counters, an inference is not a search.

The federal government also pushes back against Carpenters suggestion that broader privacy concerns weigh in favor of Fourth Amendment protection for his cellphone records. Cellphone users like Carpenter know (or at least should know) how their phones work: by giving off signals that are sent to the cellphone providers through the closest tower. Therefore, the government contends, Carpenter assumed the risk that the information would be divulged to police.

Carpenters argument that cellphone records are somehow more private than the financial information that was not protected in Miller has no real support, the government tells the justices. And the information at issue in Carpenters case is more limited than in United States v. Jones, in which the Supreme Court ruled that the installation of a GPS tracking device on a suspects car, without a warrant, violated the Fourth Amendment. In Jones, the government points out, the police used the GPS device to follow the cars movements continuously for 28 days, allowing them to pinpoint the cars location to within 50 to 100 feet. Here, the government emphasizes, the only information that the government received was which tower connected with Carpenters phone when he was making the calls.

Carpenters case is not the Supreme Courts first foray into the intersection of cellphone technology and the Fourth Amendment. In 2014,the justices ruled that police must obtain a warrantto search information stored on the cellphone of someone who has been arrested. In his opinion for the court, Chief Justice John Roberts emphasized that todays phones are based on technology nearly inconceivable just a few decades ago and 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. And the justices made clear that their decision did not render the information on a cellphone completely off limits to police; it just meant that police officers will normally have to get a warrant. The justices may ultimately conclude that, as the federal government argues, giving law-enforcement officials access to information about where a particular cellphone has been is not the same as allowing them to review the kind of detailed personal facts available on the phone itself. But no matter what they decide, their ruling could shed significant new light on what limits the Fourth Amendment will impose on efforts by police to benefit from the significant technological advances in the 21st century.

Posted in Carpenter v. U.S., Summer symposium on Carpenter v. United States, Plain English / Cases Made Simple, Featured, Merits Cases

Recommended Citation: Amy Howe, The justices return to cellphones and the Fourth Amendment: In Plain English, SCOTUSblog (Jul. 31, 2017, 10:57 AM), http://www.scotusblog.com/2017/07/justices-return-cellphones-fourth-amendment-plain-english/

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The justices return to cellphones and the Fourth Amendment: In Plain English - SCOTUSblog (blog)

The bipartisan ECPA Modernization Act of 2017 introduced by Sens. Patrick LeahyPatrick LeahyDigital privacy bill still abandons probable cause for our papers Overnight Tech: Driverless car bill advances in House | Bezos now world's richest person | Tech groups hail new email privacy bill Senate panel advances measure to protect medical marijuana states MORE (D-Vt.) and Mike LeeMike LeeDigital privacy bill still abandons probable cause for our papers McConnell faces questions, but no test to his leadership Overnight Cybersecurity: Senate sends Russia sanctions bill to Trump | Senators unveil email privacy bill | Russia tried to spy on Macron with Facebook MORE (R-Utah) is a welcome correction to a legislative flaw in the Fourth Amendment protections of emails stored in the cloud. Because of a law created before the cloud came to be, emails stored longer than 18 months could be accessed by government agencies without a warrant signed by a neutral judicial officer after presentation of probable cause of unlawful activity.

Citing the most basic Fourth Amendment protocols against warrantless access to emails, the bill was introduced under the premise of fixing that flaw for these older emails in the cloud. The bill, though, still leaves open probable cause-free access to emails and other papers through use of judgeless administrative subpoenas.

A rule of construction in the ECPA Modernization Act that is entirely inconsistent with the sacrosanct warrant and probable cause provisions of the Fourth Amendment is that it shall [not] limit an otherwise lawful authority of a governmental entity to use an administrative subpoena authorized by Federal or State statute.

Administrative subpoenas, also called civil investigative demands, are search writs issued by government agencies and state attorneys general or prosecutors to disgorge private papers. They may be issued without probable cause, and require no before-the-fact review by neutral judicial officers. They may be enforced in court under threat of contempt and other penalties, and courts give Chevron deference to these writs, meaning the issuers of them may in large degree determine the scope of the laws they claim to be enforcing.

In these regards, administrative subpoenas are worse than the general warrants banned by the Fourth Amendment after Americas colonial experience with the Writs of Assistance, which in fact helped foster the American Revolution. The Writs of Assistance targeted colonial merchants, but were at least issued by judges who could determine that legitimate laws were being enforced. These colonial Writs required returns before judicial officers, and government searchers were subject to legislative penalties and even private lawsuits for exceeding the scope of the judicially authorized searches. Some colonial judges even refused to issue these Writs when government officials refused to provide facts under oath.

The administrative subpoena regime abandons the requirement of probable cause both before issuance by the searchers themselves and in after-the-fact judicial hearings to enforce them. Unlike the general warrants under which judges determined the scope of the searches in advance, although leaving the persons, businesses, and places to be searched up to the discretion of the government searchers, administrative subpoenas may be issued based on flawed interpretations of the law and without independently verified facts indicating law may have been violated by the targets.

Administrative subpoenas therefore lack the separation of powers found even in the Writs of Assistance regime. The discretion of searchers under the administrative subpoena regime is therefore broader and in many ways more dangerous to the Fourth Amendment right of security than the Writs of Assistance.

The Boston Globe recently reported that the American Civil Liberties Union of Massachusetts is calling out the explosion in the use of these sanctioned fishing expedition tool[s], and how some state prosecutors have refused to disclose how many they issue. This mirrors my own experience with one state attorney general who ducked a Freedom of Information Act request about the quantity she issues, claiming attorney-client privilege among other excuses not to comply.

Administrative subpoenas are in fact impossible to reconcile with the Fourth Amendment. The very premise of the ECPA Modernization Act is that government may not violate the security of private records unless a judge has issued a warrant after hearing probable cause under oath that facts indicate a law is being broken. Government officials will exploit this expressly sanctioned loophole in the bill and subpoena emails directly from their targets in this probable cause-free administrative subpoena regime. Neither digital nor hard records will be safe from unreasonable government searches and compelled disgorgement.

Mark J. Fitzgibbons is President of Corporate Affairs at American Target Advertising, Inc.

The views expressed by this author are their own and are not the views of The Hill.

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Digital privacy bill still abandons probable cause for our papers - The Hill (blog)