The following is the statement of Committee for Justice president Curt Levey on Carpenter v. United States, a Fourth Amendment case heard by the U.S. Supreme Court today:
Today the Supreme Court heard one of the most important Fourth Amendment cases of this decade, which will determine if and when law enforcement can seize and search an individual's cell phone location data—revealing virtually all of that person's movements—without a search warrant.
The Court's decision is likely to have far-reaching ramifications not just for location data, but also for the privacy of the information that we increasingly store in the data cloud. Indeed, the larger question in Carpenter is whether Fourth Amendment principles and our privacy rights will be preserved in an age when our most private information is often in the cloud rather than our homes. At oral argument today, the Justices seemed sympathetic to this problem.
The Supreme Court's Third Party doctrine is a key part of the Carpenter case. The doctrine holds that people who "voluntarily" convey information to a third-party, such as a bank or cell phone provider, have no reasonable expectation of privacy in the information conveyed and thus no Fourth Amendment protection.
When applied to the era of cloud computing, this relatively narrow exception to constitutional guarantees becomes a broad license for the government to monitor much of the data we necessarily transmit in our day-to-day lives. As Chief Justice Roberts noted today, Americans do not really have a choice about whether to use a cell phone.
Congress tried to address the problem of privacy in the digital age with the Electronic Communications Privacy Act (ECPA) in 1986. However, after numerous failed attempts by Congress to modernize this statute, Americans are left inadequately protected by a law designed three decades ago to protect the contents of email.
The Committee for Justice and several other organizations – the Competitive Enterprise Institute, Cato Institute, and Reason Foundation – joined in filing an amicus brief in Carpenter in support of extending Fourth Amendment protection to the cloud. The brief argues that a sensible approach to the Fourth Amendment in modern times is to return to the plain meaning of the amendment and recognize "that data and digital communications are property … even when the owners of the data are not in possession of it."
The Court's newest justice, Neil Gorsuch, was sympathetic at oral argument today to the argument that the government had usurped Carpenter’s property rights. In fact, at his confirmation hearing earlier this year, Gorsuch stated that “Technology changes but the principles don’t,” adding that “it can’t be the case the U.S. Constitution is any less protective” of people’s privacy than it was at the time it was written.
In sum, Carpenter v. United States gives the Supreme Court a golden opportunity to update its Fourth Amendment doctrines to account for the realities of the digital age. The alternative would be to make opting out of the modern world a prerequisite for enjoying the Constitution's protection against unreasonable search and seizure. In light of today's argument and Justice Gorsuch's addition to the Court, we are very hopeful that the Court will choose the former.