On June 5, 2017, the United States Supreme Court (USSC) granted certiorari in Carpenter v. United States, a Sixth Circuit case that provides the USSC with the opportunity to clarify whether individuals have a reasonable expectation of privacy in location data shared with electronic communications service providers. Specifically, the USSC will consider whether the Fourth Amendment requires law enforcement to obtain a warrant for the search and seizure of wireless carriers’ cell phone data that reveals the cell phone user’s location over the course of several months; or whether such location information falls within the long-recognized “third-party doctrine” exception to Fourth Amendment protections.
In the petition for certiorari, Carpenter sought review of the Sixth Circuit’s decision to uphold his conviction for a series of armed robberies. In prosecuting Carpenter, the government applied for court orders under the Stored Communications Act (SCA), to access more than five months of historical cell phone locations records for Carpenter and several other suspects. Under the SCA, a government entity may obtain such records without a warrant or probable cause as required under the Fourth Amendment, provided that such data has been stored for more than 180 days and that the government entity offers “specific and articulable facts showing that there are reasonable grounds to believe that” the records sought “are relevant and material to an ongoing criminal investigation.” A three-judge panel of the Sixth Circuit held that the government did not violate Carpenter’s Fourth Amendment rights by failing to obtain a search warrant for his cell-site tracking data. The panel also focused on the third-party doctrine—under which no legitimate expectation of privacy exists in information voluntarily provided to third parties.
The Sixth Circuit, noted that content-based information is entitled to an expectation of privacy triggering Fourth Amendment protection, whereas non-content-based information that is used “as a means of establishing communication” lacks that protection. The majority held that because cell phone users are aware, or should be aware, that cell-site tracking data is recorded by cell phone companies as a routine means of establishing and providing communication services, cell-site tracking data is most aptly classified as non-content information that carries with it no legitimate expectation of privacy, and it therefore falls outside the realm of Fourth Amendment protection.
The majority opinion noted the 2012 USSC case United States v. Jones, in which the USSC held that installing a GPS tracking device on a vehicle to track its movements constitutes a search under the Fourth Amendment. The Sixth Circuit distinguished Jones on two grounds: (1) while the location information in Jones was obtained by a GPS tracking device that law enforcement placed on petitioner’s car, the cell-site location data at issue in Carpenter was obtained by police through a third party to which Carpenter had voluntarily disclosed the information; and (2) whereas GPS tracking devices are accurate within about 50 feet of the device’s location, the location accuracy of cell-site data varies greatly and is generally far less precise.
The question before the USSC is whether the warrantless search and seizure from wireless carriers of 127 days’ worth of cell-site location data is permitted under the Fourth Amendment. The answer may require an assessment of when location data becomes so precise as to warrant Fourth Amendment protections, and whether users of communications services cede Fourth Amendment protections by voluntarily disclosing communications and related information to providers of communications services. If the opinion maintains that electronic communications data voluntarily disclosed to third parties is not subject to a reasonable expectation of privacy under the Fourth Amendment, that could potentially impact the interpretation of privacy torts, certain data breach claims, and other issues that rely on an assessment of whether information is subject to a reasonable expectation of privacy.