Cellphone Privacy Laws: Big Brother’s in Your Pocket

If the U.S. Supreme Court’s previous term was like canned pork and beans, then the upcoming term will be like a Kobe beef steak. This upcoming term, in other words, is full of blockbuster cases. One such case is Carpenter v. United States, which addresses whether acquiring a person’s cell-site location information (CSLI) without a warrant constitutes a search and seizure and, therefore, violates the Fourth Amendment. But most importantly, the issues raised by Carpenter require the Court to revisit a controlling principle that’s stifled privacy advocates for decades: the third-party doctrine.

Under the third-party doctrine, a person has no reasonable expectation of privacy in information conveyed voluntarily to a third party and, therefore, no Fourth Amendment protection. If a person discloses information to a third party, such as a bank or phone company, the police can legally acquire that information without a warrant and use it in a criminal proceeding.

For years, the Supreme Court has grappled with applying decades-old principles to contemporary situations. Now, the Court will again have to either extend or redefine a long-followed constitutional rule, either broadening or constricting our constitutional right to privacy. When the Court originally established the third-party principle, it based its conclusion partially on the idea that the information being disclosed was of limited sensitivity.

Smartphone technology has eroded that reasoning. Because cell phones possess and reveal sensitive information about the users, and because CSLI enables the government to watch our movements with alarming precision, the third-party doctrine isn’t equipped for the 21st century.

Cell phones are ubiquitous; they are our lifelines and arguably becoming more important than laptops and desktop computers. Similar to GPS tracking, CSLI can reveal private activities, like visits to “an abortion clinic, AIDS treatment center, [or] strip club.”

Every time we use our cell phones, we leave behind traces in the ether. Cellular companies capture those digital fragments and record our cellular activities. That’s what the Carpenter case is about. Whenever someone accesses a cellular network, their phone connects to a nearby cell tower, which logs the phone’s location. Location information stemming from phone calls, text messages and everyday internet connections are recorded and housed with the service provider. It’s just the type of digital gold mine police salivate over.

The facts of the case are simple: Without a warrant, the police acquired four months’ worth of CSLI from 2010 and 2011, analyzed the data, and deduced and pinpointed Timothy Carpenter’s precise location. Investigators used the the findings at trial to show that Carpenter had been in the vicinity of the various Ohio and Michigan T-Mobile and Radio Shack locations which were robbed and subsequently convicted him of armed robbery. Sounds straightforward, but the police’s actions raise fundamental constitutional issues.

The Fourth Amendment forbids unreasonable searches and seizures. To qualify as a search, there must either be an intrusion into a space where a person has a reasonable expectation of privacy or a physical trespass into a constitutionally protected area.

The Court articulated the principle in Smith v. Maryland. In Smith, the police placed a pen register — a device that records the phone numbers a person dials — with a telephone company. For several days the defendant’s phone activity was logged without a warrant and then used against him at trial. From the Court’s view, the defendant had no reasonable expectation of privacy in the information (telephone numbers, in this case) because he voluntarily disclosed to the third-party phone company. This was partly because telephone numbers reveal little-to-no sensitive information about the person placing the calls; therefore, the Fourth Amendment’s shell couldn’t protect him.

But smartphones are a different animal entirely. Cell phones and GPS rest on a different constitutional footing than a check stub, pen register or accursed road map. In Riley v. California, Chief Justice John Roberts recognized that modern cell phones are not just another technological convenience. With all they contain and all they may reveal, [smartphones] hold for many Americans ‘the privacies of life.’” But most tellingly, in her perceptive concurrence from United States v. Jones (a case concerning GPS tracking), Associate Justice Sonia Sotomayor acknowledged the issues surrounding the third-party exception; she found it “ill suited to the digital age.”

CSLI also enables police to track who a person called or messaged or what website they visited, while concurrently pinpointing that person’s exact location. If monitored long enough, police can paint a detailed portrait of someone’s life.

Bearing all that in mind, it’s crystalline that the third-party doctrine shouldn’t apply in Carpenter. Acquiring four months’ worth of CSLI enabled police to monitor Carpenter’s life with precision. This tactic invaded not only his privacy but also the privacy of innocent individuals he associated with — such an invasion was clearly not innocuous.  

Crafting a principled exception to this rule could bar both prolonged GPS and CSLI surveillance, while leaving the third-party doctrine undisturbed. Moreover, targeting the longevity of CSLI tracking would also comport with the principles expressed in Riley and Jones. But these are mere musings; courts are better equipped to fashion such rules, and, of course, CSLI is an invaluable resource for law enforcement. They should surely use it — just snag a warrant first.

Doubtless, the third-party doctrine’s place in our constitutional history is sturdy. But applying a wooden, creaky principle not fitted for the digital era might have grave privacy implications — and not just for alleged criminals. For example, some note CSLI’s possible effect on journalists’ First Amendment rights; due to a risk of exposing sources, it may hinder a journalist’s ability to acquire truthful information, report efficiently and disclose valuable information in a way that adequately keeps the public abreast of important issues. Endorsing this warrantless law-enforcement conduct is plainly myopic and averse to some of our basic constitutional principles.

I strongly doubt Americans would trade their constitutional democracy for an Orwellian-style government, allowing Big Brother to dine with them at their table or stalk them during a Netflix rendezvous. Such a government would make Stalin sing “Hymn to the Bolshevik Party” from his grave, and it offends a sacred constitutional value: the right to be let alone.

This term is going to be action-packed, and I fully intend to sit back and enjoy the Kobe beef steak. But I’d rather do it without Big Brother’s company.

Jonathan Hamrick is a School of Law student from Atlanta.