US Supreme Court Hears Arguments in
Pivotal Case for Digital Privacy
November 28, 2017
On Wednesday, the U.S. Supreme Court hears oral arguments in a case that
is widely seen as a test of just how far the government can go to pry
personal data generated by cell phones and other digital devices.
The case, known as Carpenter v. United States, pits law enforcement
interests against the privacy rights of individuals.
At issue is whether law enforcement authorities need a search warrant to
obtain historical cell-site records known as cell service location
information (CSLI). The data are kept by phone companies to determine
roaming charges and weak spots in their networks and show the cell tower
a user connects with at any given time.
The facts of the Carpenter case are straightforward.
Between 2010 and March 2011, Timothy Carpenter engineered a series of
robberies of several cell phone stores in Ohio and Michigan. After
Carpenter and his accomplices were arrested, the FBI requested and
received several months of Carpenter's cell-site records.
Such requests are routinely granted by cell phone companies when law
enforcement authorities can show that there are “reasonable grounds” the
information is “relevant and material” to criminal investigation.
The information showed that Carpenter’s cell phone had connected with
cell towers near the stores during the time of the robberies, leading to
his conviction on 11 counts of armed robbery.
Carpenter appealed his conviction, arguing that the government had
unlawfully obtained his cell phone records without a search warrant. The
U.S. Court of Appeals for the Sixth District ruled against him.
The court argued that that customers who voluntarily turn over their
information to third parties such as cell phone companies, banks and
other institutions have no “expectation of privacy.”
In two previous cases in the 1970s, United States v. Miller and Smith v.
Maryland, the Supreme Court upheld the so-called “third party doctrine.”
But privacy advocates say the third party doctrine is not suitable for
the digital age, arguing that increasingly sophisticated cell phones
have become repositories of data that the government should not be able
to access without probable cause.
Andrew Ferguson, a professor of law at the University of the District of
Columbia, joined a group of 42 criminal procedure and privacy scholars
who filed a brief in support of Carpenter.
In an interview with VOA, Ferguson discussed the case and its
implications for privacy rights.
What is at issue in Carpenter v. US?
There is both a narrower issue and a broader issue that is potentially
at play in Carpenter. The narrower issue is whether an exception to the
Fourth Amendment, called the Third Party Doctrine, should survive the
digital age. And the broader issue is, what does the Court do with a
Fourth Amendment that was created in an era of small data when we are in
a new world of surveillance?
If the court decides the Fourth Amendment doesn’t require a warrant for
this data, it means police can actually, without any constitutional
limitations, obtain all our personal data for really any reason they
want. There are obviously legislative restrictions but as a
constitutional matter it wouldn’t be a Fourth Amendment requirement to
get a warrant, to obtain any of this personal information, be it your
smart pacemaker, your smart Fitbit data that can tell whether you’re
excited or not excited, and whether any of your information including
where you’ve been via your cell phone and any other tracking technology.
What is the government's argument?
The government essentially says you the consumer have no expectation of
privacy in the information you give up to the third party cell provider.
In fact, you probably don’t know how it works. The records that are
created by these companies, they’re not your records, they’re the
Why would you have an expectation of privacy on the records that these
companies did? If they were selling the data to other companies and made
a profit, would you have a claim to the profit?
No. So what’s the difference between getting the information to the
government? The government is getting it like any other party. Why would
you be able to claim any sort of expectation of privacy over that
information? The government’s position is that the Third Party Doctrine
makes sense. It works well for law enforcement and this should just be
an easy case of expanding and extending the Third Party Doctrine to the
next question, which is the cell site locations.
What is the counterargument?
The counterargument is that the precedent that the government is relying
on deals with a different context. So the phone information that was at
issue in the original Smith v. Maryland was not very revealing; it was
basically the number you called. It wasn’t going to show where you’d
been, who you’d visited, the places you’d gone the last few times. It
was a situation where you at the time of the old fashioned phone calls
voluntarily giving up the information. You knew you were making phone
calls. Here, whether or not you use your cell phone, your cell phone is
giving off that information so you can’t say it’s voluntary
relinquishment of your expectation of privacy because if you’re on the
phone, that’s the way it works. So there is something about the private
nature of this data.
There is something about the Fourth Amendment controls locations and the
ability to go places without the government surveillance and oversight.
And these old fashioned cases should be left in the past because the new
world is too invasive, too revealing of digital clues, and the fourth
amendment needs to adapt.
In the brief you and a group of scholars filed in the case, you argue
that an extension of the so called Third Party Doctrine “could eliminate
citizens’ privacy in the modern age.” Are the stakes that high?
I think they are. If you don’t require a warrant to get this kind of
information, and there is not legislation protecting it, there is no
constitutional barrier for police to obtain information even about the
justices themselves or about individuals who they sort of suspect but
don't have great reason to suspect. It’s going to chill First Amendment
association and the ability to get together for political activism. And
it's going to reveal a whole host of intimate details that most of us
would like to keep private from our government.
What if the court rules in favor of Carpenter?
If the court rules in favor of Carpenter, and says police are required
to get a warrant before doing it, I think it will just settle into a
status quo where police get warrants for their criminal investigation.
There may be some here they won’t be able to do that, and it will be an
impediment to law enforcement, but by and large they’re doing it
already. Right now, most private companies say, look we follow the law.
If the law requires a warrant, we require a warrant, and if the law
doesn’t require a warrant, we don’t require a warrant.
Are there any international ramifications?
is far more protective of data privacy than the U.S. has ever been and
has moved there quicker and in more robust fashion. So in many cases,
the U.S. has lessons to learn from Europe as opposed to if you care
about data privacy and how to protect it. So it may be in a case that
people around the world will see this as an American phenomenon,
wrestling with what the fourth amendment means.
Generally speaking, it raises big questions because most of the tech
companies are global companies, most of the issues involved privacy,
which is certainly not a uniquely American concern, and the technologies
are going to be used and sought after by governments in lots of
repressive governments that are going to see the ability to use big data
surveillance technology, big data policing technologies, to control
their citizens. And one way you can see a lot of the rise of big data
policing is as a measure of social control.