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  • Ashley N. Baker

The Supreme Court Can Protect Privacy Rights in the Digital Age

On Friday, the Committee for Justice (CFJ) joined the Competitive Enterprise Institute, the Cato Institute, and the Reason Foundation in filing an amicus brief in support of Fourth Amendment privacy rights in the Supreme Court case Carpenter v. United States.

When the Court hears this case this fall, the justices will determine whether law enforcement can seize and search an individual's cell phone location data—revealing virtually all of the person's movements—without a search warrant. The brief says no. Under the plain text and intent of the Fourth Amendment, our brief argues, the government should not be able to turn a cell phone into a tracking device without a warrant.

The appellants in the case are two men convicted on federal charges following a series of armed robberies. They argue that the government violated their Fourth Amendment rights when it acquired the location data from their wireless carriers without a search warrant.

The U.S. Court of Appeals for the Sixth Circuit ruled against the men based on the “reasonable expectation of privacy” doctrine, and its corollary, the third-party doctrine, both of which were created by the Supreme Court in the twentieth century. The third-party doctrine assumes that no search—and thus no Fourth Amendment violation—occurs when the government seizes an individual's private data that has been "voluntarily" conveyed to a third party by, for example, revealing one's location to a cell phone service provider by turning on one's phone.

The amicus brief explains that this nonsensical assumption is a result of judge-made doctrines that have become unmoored from the text and intent of the Fourth Amendment. Moreover, the “reasonable expectation" standard "invites justices and judges to try to assess the entire society’s emergent views on privacy. That is a sociological exercise, not a juridical one." Additionally,

"The subjectivity … is compounded by its essential circularity. Societal expectations guide judicial rulings, which guide societal expectations, and so on … and the technology continues to change, so there is simply no objectively reasonable sense of privacy for judges to discover."

The brief concludes that the sensible approach to the Fourth Amendment in the age of the data cloud is to return to the plain meaning of the amendment by recognizing "that data and digital communications are property that can be seized and searched even when the owners of the data are not in possession of it." We point out that:

"Incredibly deep reservoirs of information are constantly collected by third-party service providers today. … Internet service providers maintain copies of huge swaths of the information that crosses their networks … Search engines maintain logs of searches … Payment systems record each instance of commerce … This trend will only accelerate as the 'Internet of Things' supplies data revealing more and more of our activities—even use of our household appliances—to third-party service providers."

"Carpenter provides a good opportunity for the Justices to revise the third-party doctrine, lest it swallow privacy rights in the digital age," said Ashley Baker, director of public policy at the Committee for Justice.

"One would have to virtually opt out of our high-tech society to evade this license. That should not be a required trade-off for enjoying the protections of the Fourth Amendment, especially when the government has lawful alternatives for achieving its law enforcement needs," Baker wrote last week in an op-ed in The Hill.

"The Sixth Circuit intentionally overlooked a central reality of the modern age, namely that the only way not to share our location data is to never use a cell phone," added Committee for Justice president Curt Levey. "Opting out of modern society should not be a prerequisite to enjoying the protections of the Fourth Amendment."

Read the brief filed by Competitive Enterprise Institute, the Cato Institute, the Committee for Justice, and the Reason Foundation below:


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