Category Archives: Fourth Amendment

MEXICO, Mo. The Eighth Circuit Court of Appeals has revived a lawsuit in which Ron Calzone, a rancher and small businessman who lives in the country near Rolla, Missouri, is challenging a Missouri law that allows highway patrol officers to seize and search vehicles even if the officer has no reason whatsoever to believe that the vehicle or the driver are in violation of any law.

The Eighth Circuits ruling reverses a prior ruling by Judge Stephen Limbaugh, Jr., and sends the case back to Judge Limbaugh for further consideration.

On May 3, 2013, Calzone was taking his large farm truck to gather gravel for his daughters chicken coop when Corporal J.L. Keathley of the Missouri State Highway Patrol pulled him over and asked to inspect the vehicle. The officer acknowledged that he had not observed Calzone breaking the law in any way and that he had stopped Calzone simply because he did not recognize the truck or the markings on the vehicle. When Calzone protested, the trooper pointed out that state statute expressly authorizes highway patrol officers to stop almost any type of vehicle with or without probable cause to believe that the vehicle or driver is in violation of the law.

The Constitution is supposed to protect citizens against unreasonable searches and seizures, Calzone said. My truck was clearly within size limitations, the bed was empty, and in fact the truck had just passed a state inspection that very morning. So this was the very definition of an unreasonable search and seizure, and I knew that if citizens fail to stand up for their constitutional rights, they will wake up one day to find they no longer have any rights.

With help from the Freedom Center of Missouri, Calzone sued, arguing that the statute authorizing suspicionless stops violated the Fourth Amendment. The government responded that anyone driving what Missouri law defines as a commercial vehicle is part of the commercial trucking industry, and that the Fourth Amendments protections do not apply because commercial trucking is a pervasively regulated industry. Calzone pointed out that under Missouri law every half-ton pickup truck is, by definition, a commercial vehicle and that neither he nor many of the other ordinary people who regularly drive what the state calls commercial vehicles could justifiably be considered professional commercial truckers.

Judge Limbaugh initially ruled in favor of the government, but the Eighth Circuit has now reversed that decision. The case will be sent back to the federal district court to determine whether the challenged statute is being applied in a manner that complies with the Fourth Amendment.

Missouris highways and interstates are full of trucks and vans that the state defines as commercial motor vehicles, even if the drivers have never been professional commercial truckers, explained Dave Roland, the director of litigation for the Freedom Center. We are confident that the courts will conclude that ordinary drivers do not abandon their Fourth Amendment freedoms just by getting behind the wheel of a large vehicle.

See original here:
Federal Court Reverses Decision That Said Missouri Troopers Can Search Trucks Without Probable Cause - Lake Expo

The Fourth Amendment has protected our right to privacy since its ratification in 1791. Thetextof the amendment reads, the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, but how well do these protections hold up in the digital age?

Today, most of us are typing emails on our laptops, not scribbling a letter with a quill and inkwell. Therefore, its important to ensure our sensitive, digital communications are well-protected. Clearly, the Fourth Amendment transcends time and technological change, but some sinister players are pretending otherwise.

Currently, under theElectronic Communications Privacy Act(ECPA), the United States federal government may seize any citizens private email communicationswithout a warrant, provided they are over 180 days old. By law, these older emails are not considered privy to a reasonable expectation of privacy under the ECPAsSection 2703(a).

Even worse, the ECPA was enacted in 1986, years before email usage was even widespread. However, the 180-day rule doesnt just apply to emailsevery Americans texts, GroupMe chats, and Facebook messages are fair game too.

Its time to modernize the Fourth Amendment to protect our online communications, and bipartisanThe Email Privacy Act, re-introduced by Reps. Kevin Yoder (R-KS) and Jared Polis (D-CO), does just that. Namely, the Email Privacy Act would require all government agencies to acquire a warrant before accessing any online communications over 180 days oldjust like any other private documents.

In the era of cloud technology, communications could be stored on enormous server, conceivably forever. More and more, our sensitive financial, relational, and personal details exist online, making their security absolutely essential.

The ECPA is problematic in other areas as well. In December of 2013, federal law enforcement sought asearch warrantfor Microsoft customers email account as a component of a criminal narcotics investigation. Microsoft complied up until a point, but there was one big problemthe actual emails were stored overseas.

Microsoft refused to turn the emails over, and was held in civil contempt by the district court. Three years later, however, the Second Circuit Court of Appeals ruled against the federal government, expressing that companies cannot be compelled to release customer emails stored outside the United States.

We conclude that 2703 of the Stored Communications Act does not authorize courts to issue and enforce against USbased service providers warrants for the seizure of customer email content that is stored exclusively on foreign servers, the courtruled.

TheInternational Communications Privacy Act (ICPA) is one potential solution to this issue, creating, a legal framework that clarifies the ability of law enforcement to obtain electronic communication of U.S. citizens, no matter where the person or the communications are located.

Additionally, the ICPA would allow law enforcement to obtain communications from foreign nationals, in consistency with international law. Sponsored by Senators Orrin Hatch (R-UT), Chris Coons (D-DE), and Dean Heller (R-NV), the bipartisan legislation would remedy this complex problem.

The International Communications Privacy Act aids law enforcement while safeguarding consumer privacy, striking amuch-needed balance in todays data-driven economy, Senator Hatchstated. Clearly, Americans can no longer be complacent about their privacy protections. In a digital age of prying eyes, the consequences of privacy violations can be costly, and long-lasting.

On June 23rd, the Department of Justiceapplied to take the Microsoft case to the Supreme Court, but Congress shouldnt wait for the court to take action. Passing the ICPA and other meaningful reform is too important to wait, when innocent Americans are being caught in the crossfire.

One way or another, its time to give the Fourth Amendment a sorely needed update.

Originally posted here:
The Fourth Amendment's Digital Update - The Daily Caller

Posted Fri, August 4th, 2017 1:39 pm by Orin Kerr

Orin Kerr is the Fred C. Stevenson Research Professor of Law at The George Washington University Law School.

One of the most basic ideas in Fourth Amendment law is what you might call the eyewitness rule: The government can always talk to eyewitnesses. If the police find out a bank was robbed, they can go to the bank and interview those who saw the crime occur. They can talk to the bank clerk about what he observed. They can talk to the security guard about what she experienced. They can talk to bank customers about what happened. These interviews, whether voluntary or compelled, dont trigger the Fourth Amendment. Theres just no Fourth Amendment right to prevent people from talking about what they saw you do.

If the Supreme Court sticks with the eyewitness rule, Carpenter v. United States is an easy case. Cellphone companies are eyewitnesses. Customers use their services and hire the companies to place calls for them. The companies generate records of what they did for their customers. If the police find out a phone was used in the commission of a crime, they can go to the phone company and get its records about how the phone was used. The phone company can be forced to tell the government what it did for its users. Because theres no Fourth Amendment right to prevent people from telling the police about what they saw you do, getting those records does not trigger the customers Fourth Amendment rights.

The challenge for Timothy Carpenters lawyers is to get the Supreme Court to carve out an exception to the eyewitness rule. They need to persuade the court that sometimes the law shouldnt let people talk about what they saw you do without a warrant. The strategy will be to say that the eyewitness rule shouldnt apply because Carpenter had a reasonable expectation of privacy in his location. Because he had a reasonable expectation of privacy, theyll say, the government should need a warrant to find out what the phone company knows about him.

But this framing is based on a conceptual error. Properly understood, this case has nothing to do with reasonable expectations of privacy. To see why, we need to understand the origins of the reasonable-expectation-of-privacy test.

In 1967, when Katz v. United States was decided, two kinds of cases dominated Fourth Amendment law defining what is a search. The first kind of case identified the spaces that merited Fourth Amendment protection. Homes received protection, but open fields didnt. Katz was one of these cases, because it asked whether public phone booths were protected, like homes, or unprotected, like open fields.

The second kind of case considered when disclosure from inside a protected space eliminated privacy. The Supreme Court decided a long string of those cases in the decade before Katz. And it consistently adopted a simple rule: A person who knowingly exposed private information from a private space to outside observation waived Fourth Amendment protection. Hoffa v. United States, decided the year before Katz, is a helpful example. The Supreme Court held that James Hoffa had no Fourth Amendment rights in what he told his friend Edward Partin even though the conversation occurred inside the protected space of Hoffas hotel room.

This background is necessary because it explains Justice John Marshall Harlans two-part Katz test that the Supreme Court later adopted. Harlan explained the test as his understanding of the rule that has emerged from prior decisions, so he was simply trying to summarize what the cases had held. And Harlans summary nicely (if briefly) encapsulated the two lines of cases. First, a space had to be protected, which was the case if society was willing to recognize an expectation of privacy as reasonable there. Second, the person had to exhibit an actual expectation of privacy, an intention to keep the protected space to himself, by not exposing the space to the plain view of outsiders.

In other words, the Katz two-part test just restated the two requirements of then-existing Fourth Amendment doctrine. To establish Fourth Amendment protection, a person needed to have a place that society would recognize as justifying privacy and had to take steps to shield that space from outside observation.

Why does this history matter for Carpenter? It matters because this case, like all eyewitness cases, involves the second aspect of Fourth Amendment protection: the requirement that a person must shield his information from observation to get Fourth Amendment protection. Even assuming a cellphone users location should count as a protected space, the user has revealed his location to the phone company. Whether Carpenter had a reasonable expectation of privacy should be irrelevant. Carpenter shouldnt win because he didnt shield his location from his phone provider. Carpenters relationship with the phone company is like Hoffas relationship with Partin. Carpenter cant both share his information with the phone company and demand a warrant before the phone company gives that information to the government.

This point is hard to see because the Supreme Court veered off-course in the 1970s and 1980s with cases involving what it has called the third party doctrine. Those cases are normatively correct. But theyre in the wrong doctrinal box. As I detailed in a recent article, the court mistakenly moved the content of the subjective-expectation-of-privacy test over to the reasonable-expectation-of-privacy test and relabeled it the third-party doctrine. Students of the Fourth Amendment have been confused ever since. Isnt it sometimes reasonable, they ask, to expect privacy in information that a person knowingly disclosed? But thats not the right question. The right question is, should you have a right to stop others from telling the government about what they saw you do?

This understanding explains the maddening difficulty Carpenters side has articulating the limits of its argument. The Fourth Amendment calls for clear rules. The government needs to know what is a search and what isnt. But Carpenters side always struggles to explain when the Fourth Amendment should offer protection against government access to business records. If cell-site records are protected, how about credit-card records? Telephone records? Bank records? Should the amount of time covered by the governments request matter, and if so, how? Advocates for Fourth Amendment protection in cases like Carpenter generally decline to say where the lines should be.

The reason for this reluctance, I think, is that there is no obvious line to draw for when you should have a right to stop others from telling the government what they know about you. Carving out an exception to the eyewitness rule creates a puzzle: There are no pre-existing principles that explain which eyewitnesses can be forced to talk to the government and which ones cant. Legislatures can just draw arbitrary lines. But courts have no traditional tools to use to decide when a warrant is needed to make an eyewitness speak.

Posted in Carpenter v. U.S., Summer symposium on Carpenter v. United States, Featured, Merits Cases

Recommended Citation: Orin Kerr, Symposium: Carpenter and the eyewitness rule, SCOTUSblog (Aug. 4, 2017, 1:39 PM), http://www.scotusblog.com/2017/08/symposium-carpenter-eyewitness-rule/

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Symposium: Carpenter and the eyewitness rule - SCOTUSblog - SCOTUSblog (blog)

Alan Butler is senior counsel for the Electronic Privacy Information Center, which filed amici briefs in support of petitioner David Riley in Riley v. California and in support of respondent Antoine Jones in United States v. Jones.

The Supreme Courts Fourth Amendment opinions, especially those involving new surveillance technologies, are well stocked with metaphors and similes. Lower courts are faced with the challenge of applying abstract contours of constitutional law to techniques unimaginable when previous cases were decided. Usually courts reach for similes first this new technique is like the old technique considered in that famous case several decades ago in hopes of maintaining consistency. But, more recently, the Supreme Court has relied on new metaphors to explain how to adapt old doctrine to new facts. These doctrinal course corrections are necessary where the routine application of old rules to new facts produces absurd results. We will likely see a similar correction in Carpenter v. United States.

Multiple appellate courts, including the lower court in this case, have held that cellphone location records are not protected under the Fourth Amendment because they are similar to the logs of dialed numbers that were at issue in Smith v. Maryland. The Supreme Court granted certiorari in Carpenter, despite the lack of a circuit split, to address this important Fourth Amendment question. Now the court has an opportunity to set the record straight, and should avoid the conceptual pitfalls that have bedeviled lower courts over the last decade. The court should build upon its unanimous judgments in Jones and Riley to establish strong constitutional protection for location data.

The facts in Carpenter are similar to other recent location-data cases. Law-enforcement investigators obtained several months of the defendant Timothy Carpenters cellphone location records without a warrant. These records were obtained from Carpenters cellphone providers, and included a historical log showing which cellphone towers the target phones were connected to when they made or received calls during a six-month period. Unlike some other cellphone-tracking cases, this case does not involve real time location tracking or the use of GPS data.

The Supreme Court has made a point in its recent decisions in Jones and Riley to reject the wooden application of decades-old Fourth Amendment precedents to modern problems. In Riley, the court declined to apply the traditional search incident to arrest exception to permit the warrantless search of a cellphone in the defendants possession at the time of arrest. In a unanimous decision, the court dismissed the notion that a cellphone was materially indistinguishable from a cigarette pack or a wallet (That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.). Instead, the court found that the search of a cellphone is even more revealing than the search of a home.

In Jones, the Supreme Court considered whether the attachment and use of a GPS device to track the location of the defendants car was a search under the Fourth Amendment. The court had previously held in a pair of cases in the 1980s that the use of radio beepers to track the movement of a car on public roads over a month-long period was not a search. Some lower courts had found that a GPS tracker was like a beeper and that use of the device therefore would not trigger the Fourth Amendment. But the court unanimously rejected that conclusion, albeit under two distinct rationales. Four justices joined Justice Antonin Scalias majority opinion finding that the attachment of a GPS device was a physical trespass, akin to a constables concealing himself in the targets coach. Three justices joined Justice Samuel Alitos concurring opinion, which found that the tracking violated a reasonable expectation of privacy. Alito was skeptical of the usefulness of Scalias metaphor, because it would have required either a gigantic coach, a tiny constable, or both, but nevertheless agreed that prolonged location tracking triggered the Fourth Amendment.

In both Jones and Riley, the Supreme Court re-evaluated long held assumptions in light of new technological developments. The result in both cases was the unanimous conclusion that digital tracking and surveillance techniques trigger close Fourth Amendment scrutiny because they are more intrusive than their physical analogs. The collection of cellphone location data at issue in Carpenter v. United States is another example of changing technology that has enabled a level of intrusiveness that was impossible in an analog world. If officers can warrantlessly track every phone, then they can essentially deputize millions of tiny constables, hiding in our pockets and constantly recording our movements. Under the courts rationale in Jones, such extensive tracking is unreasonable, but lower courts have continued to apply analog cases to this new digital problem.

Lower courts have struggled for more than a decade to determine what Fourth Amendment and statutory protections apply to cellphone location data. In particular, courts have grappled with intersecting provisions in the Electronic Communications Privacy Act (the Stored Communications Act and Pen Register Statute) and with technological developments that have continually increased the precision of location-tracking methods. Three general trends have emerged from these cases. First, some courts have drawn a distinction between historical and prospective location data, finding that warrants are only required for prospective (or real time) tracking. Second, courts have focused on the precision of the location-tracking method in order to measure the degree of intrusiveness or the privacy interest at stake. Finally, courts have relied on the holding in Smith and the content/non-content distinction to find that location data are not protected by the Fourth Amendment.

None of the concepts used by lower courts real time vs. historical, precise vs. imprecise, and content vs. non-content provides a principled basis for crafting a Fourth Amendment rule. The Supreme Court would be wise to avoid these distinctions because they all present major pitfalls.

First, while some courts have assumed that real-time location tracking is inherently more intrusive than collecting historical data, the opposite is actually true. Historical data is more frequently used in criminal cases because it is inherently more revealing historical tracking can reveal patterns, associations, behaviors and other personal details that cannot be so easily derived from records in real time. It is the duration and extent of the tracking, not its temporal relationship to an investigation, that matters. Alito reached a similar conclusion in his concurring opinion in Jones, noting that the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.

Second, attempts to distinguish cases based on the precision of the location-tracking methods at issue have been inconsistent and arbitrary. The government has argued that collection of cellphone-tower data should not trigger Fourth Amendment scrutiny because the data do not reveal the users precise location. Many courts have assumed that cell-tower data are necessarily less precise than GPS data (the type of data at issue in Jones). But that assumption is wrong in many cases (tower data can be more precise than GPS data in urban areas) and is inherently short-sighted. The precision of location-tracking methods has only increased over time and will continue to do so as the density of cellphone towers increases and data analysis methods evolve. Indeed, federal law requires all cellphone providers to develop the capability to locate 911 callers precisely in an emergency.

Third, the traditional distinction between content and non-content (or metadata) does not map well onto location data because it does not provide a useful analytical framework for evaluating the privacy interests at stake. The Supreme Court protected the contents of the phone call in Katz v. United States even though those contents had been disclosed to another person (the recipient of the call). The fact that cellphone location records are held by a third party does not mean they are not entitled to protection. Indeed, Justice Potter Stewart recognized in his dissenting opinion in Smith that even the mere numbers dialed can reveal private facts, and thus are not without content. But the data generated by modern communications bear no resemblance to the minimal billing data generated by the analog telephone system in 1979.

Lower courts refusal to protect cellphone location data is especially troubling when, as here, Congress has already established higher privacy standards for location data in some contexts. When Congress enacted the Communications Assistance for Law Enforcement Act in 1994 at the behest of the FBI, it prohibited law enforcement from obtaining location data with a pen register (the same type of device at issue in Smith). But rather than view this statutory protection as an indication that individuals have a reasonable expectation of privacy in their location information, courts have held that cellphone-tower data are similar to the call records at issue in Smith and thus are not protected.

A better way to resolve the issue in this case is to re-evaluate Smith in light of the changes in our communications systems since 1979. Justice Sonia Sotomayor alluded to the need to do so in her concurring opinion in Jones, positing that the rule adopted in Smith is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. Even Alitos concurring opinion in Jones implicitly recognized that long-term tracking was fundamentally different from the short-term, analog tracking methods in the 1980s beeper cases. If the Supreme Court rejects the conclusion that all personal data held by modern service providers are unprotected, and that the world has fundamentally changed since Smith was decided, then lower courts and Congress can finally begin to adopt appropriate digital-privacy rules.

Posted in Carpenter v. U.S., Summer symposium on Carpenter v. United States, Featured, Merits Cases

Recommended Citation: Alan Butler, Symposium: Millions of tiny constables Time to set the record straight on the Fourth Amendment and location-data privacy, SCOTUSblog (Aug. 3, 2017, 10:50 AM), http://www.scotusblog.com/2017/08/symposium-millions-tiny-constables-time-set-record-straight-fourth-amendment-location-data-privacy/

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Symposium: Millions of tiny constables Time to set the record ... - SCOTUSblog (blog)

Benjamin Beytekin/picture alliance / Benjamin Beyt/NewscomA federal judge ruled Wednesday that a Michigan woman has no basis to sue the Detroit Police Department (DPD) for shooting her three dogs because they were not properly licensed.

U.S. District Court Judge George Caram Steeh dismissed a federal civil rights lawsuit filed by Detroit resident Nikita Smith last last year after a marijuana raid by Detroit police left her three dogs shot to death.

The ruling is the first time a federal court has considered the question of whether an unlicensed petin violation of city or state codeis protected property under the Fourth Amendment. Federal courts have established that pets are protected from unreasonable seizures (read: killing) by police, but the city of Detroit argued in a motion in March that Smith's dogs, because they were unlicensed, were "contraband" for the purposes of the Fourth Amendment, meaning she had no legitimate property interest in them and therefore no basis to sue the officers or department.

In his Wednesday opinion Steeh agreed.

"The Court is aware that this conclusion may not sit well with dog owners and animal lovers in general," the judge wrote. "The reason for any unease stems from the fact that while pet owners consider their pets to be family members, the law considers pets to be property."

"The requirements of the Michigan Dog Law and the Detroit City Code, including that all dogs be current with their rabies vaccines, exist to safeguard the public from dangerous animals," he continued. "When a person owns a dog that is unlicensed, in the eyes of the law it is no different than owning any other type of illegal property or contraband. Without any legitimate possessory interest in the dogs, there can be no violation of the Fourth Amendment."

And without any Fourth Amendment violation, Steeh continued, there is no basis for a civil rights claim against the city. Steeh also ruled that Smith's suit would have been dismissed even if she had a cognizable property interest in the dogs, finding that the animals presented an imminent threat to the officers.

Smith's lawsuit characterized the Detroit police officers who raided her house as a "dog death squad." She claimed officers shot one of her pets through a closed bathroom door. Graphic photos from the raid on Smith's house showed the dog lying dead in a blood-soaked bathroom.

Smith's case is only one of several lawsuits that have been filed against the DPD for dog shootings over the past two years. The city of Detroit settled one of those suits for $100,000 after dash cam video showed an officer shooting a man's dog while it was chained to a fence. It was also one of three lawsuits against DPD for shooting dogs during marijuana raids. The most recent was filed in June after DPD officers allegedly shot a couple's dogs while the animals were behind a backyard fence.

A Reason investigation last year found the DPD's Major Violators Unit, which conducts drug raids in the city, has a track record of leaving dead dogs in its wake. One officer had shot 39 dogs over the course of his career before the raid on Smith's house, according to public records.

That officer is now up to 73 kills, according to the most recent records obtained by Reason.

Two other officers involved in the Smith raid testified during the trial that they had shot "fewer than 20" and "at least 19" dogs over the course of their careers.

The court's opinion notes that the "police officers conducting the search had not received any specific training on how to handle animal encounters during raids."

The ruling also noted that Detroit police supervisors found that the shooting of Smith's dogs by officers were all justified. "However, as in many other cases, the ratifying officers did so without speaking to the officers about what had transpired," the court wrote.

Reason's review of "destruction of animal" reports filed by Detroit police officers did not find a single instance where a supervisor found that a dog shooting was unjustified.

Detroit police obtained a search warrant for Smith's residence after receiving a tip that marijuana was being sold out of it. Police confiscated 25 grams of marijuana as a result of the raid, and Smith was charged with a misdemeanor.

However, the case against her was later dismissed when officers failed to appear at her court hearing.

Neither an attorney for Smith nor the Detroit Police Department were immediately available for comment.

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Federal Judge Rules Unlicensed Dogs Aren't Protected By Fourth ... - Reason (blog)

Posted Wed, August 2nd, 2017 12:21 pm by Jennifer Lynch

Jennifer Lynch is a senior staff attorney for the Electronic Frontier Foundation, which filed an amicus brief in support of Timothy Carpenters petition for certiorari in Carpenter v. United States.

This summer, the Supreme Court granted certiorari in Carpenter v. United States, a case that offers the court another chance to address just how far the Fourth Amendments protections against warrantless searches and seizures extend to cover information generated by the modern technologies we rely on every day.

In Carpenter, the FBI accessed location data linked to Timothy Carpenters and his co-defendants cell phones in its attempt to place the suspects at the sites of several robberies. But the data the FBI asked for and received werent limited to the days and times of the known robberies they also included months of records that could reveal everywhere the defendants were every time they made or received a phone call. And the FBI got all of this information without a warrant.

The specific data at issue in the case are called cell-site-location information, or CSLI. These data, maintained by wireless carriers, are records of the cell towers our phones connect to every time they try to send and receive calls, texts, emails and any other information. The records generated hundreds and sometimes thousands of times per day include the precise GPS coordinates of each tower as well as the day and time the phone tried to connect to it. While this all may sound complicated, the important point is that, in cases like this one, the government argues that CSLI is really just a proxy for where the phone and, by extension, the phones owner is or has been.

Police ask for these records a lot in 2016, Verizon and AT&T alone received about 125,000 requests for CSLI and each request may involve months of information on multiple people. No federal statutes place any specific restrictions on how much data the police can ask for at any one time, and the standard required to obtain access whether there are specific and articulable facts showing that there are reasonable grounds to believe the data are relevant and material to an ongoing criminal investigation is much lower than probable cause. As a result, cases like this one, in which the government obtained 88 days and 127 days worth of location information for each defendant, appear to be the norm. (In another cert petition filed this past term, Graham v. United States, the police accessed 221 days of CSLI for each defendant.)

In Carpenter, the Supreme Court will address whether access to this information is a search under the Fourth Amendment and whether that search requires a warrant. The issues raised in this case are important because location information like CSLI shows where we are and where we have been. And where we travel can reveal very sensitive details about our lives. As Justice Sonia Sotomayor noted in her concurring opinion in United States v. Jones, location information can provide the government with a precise, comprehensive record of a persons public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. Or, as the lower court in Jones put it, [a] person who knows all of anothers travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groupsand not just one such fact about a person, but all such facts.

Despite the sensitive nature of location data and the volume of information collected in Carpenter and other cases, five federal appellate courts, in deeply divided opinions, have held that historical CSLI isnt protected by the Fourth Amendment in large part because the information is collected and stored by third-party service providers. The courts have relied on a legal principle called the third-party doctrine, which was developed in two 1970s Supreme Court cases, Smith v. Maryland and United States v. Miller. This principle holds that information you voluntarily share with someone else whether that someone else is your bank (such as deposit and withdrawal information) or the phone company (the numbers you dial on your phone) isnt protected by the Fourth Amendment because you cant expect that third party to keep the information secret. By sharing that information with a third party, you have assumed the risk that it will be shared with others.

The Electronic Frontier Foundation and many others have argued that its time for the Supreme Court to revisit this outdated doctrine. As Sotomayor noted in Jones, the third-party doctrine is ill suited to the digital age. This is because, as she also noted, we live in an era in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. We use cellphones to stay in touch with friends and family on the go, store data in the cloud to be able to access it anywhere later, rely on GPS mapping technologies to find our way about town, and wear activity trackers to try to improve our health. Its impossible to use any of these technologies without sharing data with third parties.

This dilemma highlights a key weakness in this line of the Supreme Courts Fourth Amendment jurisprudence: Assuming that it is unreasonable to expect privacy when we share something with others makes secrecy a prerequisite for privacy. But Justice Thurgood Marshall recognized in his dissent in Smith years ago that [p]rivacy is not a discrete commodity, possessed absolutely or not at all. That an individual discloses information to a third party for one purpose does not mean he believes he has relinquished all privacy interests in that information. Nor is it clear that such a belief would be good for society. To maintain secrecy as a prerequisite for Fourth Amendment safeguards would mean that information once protected in the non-digital world would lose that protection today.

Some third-party cases at the Supreme Court and federal appellate courts have recognized that sharing information with others doesnt always equal blanket disclosure to all. The court has held that patients have a reasonable expectation of privacy in diagnostic test results, even when the hospital maintains the records (Ferguson v. City of Charleston); passengers retain an expectation of privacy in luggage placed in an overhead bin despite the possibility of external inspection by others (Bond v. United States); and hotel guests are entitled to constitutional protections even though they provide implied or express permission for third parties to access their rooms (Stoner v. California). And at least one lower court, the U.S. Court of Appeals for the 6th Circuit, in United States v. Warshak, has ruled that people have an expectation of privacy in email content, even if they use a third party service provider to transmit that email.

Thus, the main challenge for the Supreme Court in Carpenter will be to figure out how to reset the parameters of the third-party doctrine for the digital age or do away with it altogether.

One thing is clear: These thorny issues are not going away. How the Supreme Court decides this case will have important ramifications for the future especially for the internet of things, where sensors and devices in our homes, on our cars, and throughout our world will constantly collect, generate, and share data about us with little to no volition on our part. Choosing to participate in society in the 21st century will require use of these technologies; it shouldnt require us to relinquish our constitutional rights.

Posted in Carpenter v. U.S., Summer symposium on Carpenter v. United States, Featured, Merits Cases

Recommended Citation: Jennifer Lynch, Symposium: Will the Fourth Amendment protect 21st-century data? The court confronts the third-party doctrine, SCOTUSblog (Aug. 2, 2017, 12:21 PM), http://www.scotusblog.com/2017/08/symposium-will-fourth-amendment-protect-21st-century-data-court-confronts-third-party-doctrine/

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Symposium: Will the Fourth Amendment protect 21st-century data? The court confronts the third-party doctrine - SCOTUSblog (blog)

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Traffic Stop and Request to Search Did Not Violate the Fourth Amendment WisBar Aug. 2, 2017 A sheriff's deputy ran a man's license plates in high crime area in Kenosha and learned the vehicle's registration was suspended for emissions violations. Recently, the state supreme court ruled the subsequent stop and search, which ...

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Traffic Stop and Request to Search Did Not Violate the Fourth Amendment - WisBar

John Castellano is Deputy Executive Assistant District Attorney and Chief Appellate Attorney in the office of Richard A. Brown, District Attorney of Queens County, New York.

The Supreme Courts grant of certiorari in United States v. Carpenter highlights the clash between established Fourth Amendment doctrines and what many argue are the heightened privacy concerns of a digital era. The court will consider the scope of the Fourth Amendments protection of information contained in a cellular carriers records that reflects the location of cell towers used to complete customers phone calls and convey their texts. At stake will be at least two traditional notions underlying the courts Fourth Amendment jurisprudence. The first is the general understanding that information voluntarily exposed to others is not protected by the Fourth Amendment, and the second is the more specific third-party doctrine, which holds that government access to information collected by a private business in order to provide a service to a customer does not constitute a search.

In this case, the government obtained court orders under Section 2703 of the Stored Communications Act for a total of 127 days of historical cell-site information regarding phones used by defendant Timothy Carpenter, who had been named by an accomplice as the mastermind of a string of nine commercial burglaries committed in and around Detroit. As the governments expert testified, the records provided the location of cell towers that handled the defendants calls and texts, and indicated that the defendants phone was within one-half to two miles of the specified tower and within a one-third or one-sixth radial wedge, or sector, of the tower. The U.S. Court of Appeals for the 6th Circuit applied the third-party doctrine to hold that the Fourth Amendment did not protect this information, because the records obtained were those of the cellphone provider and reflected information collected by the provider in order to provide a service to the defendant. The court of appeals also noted that cellphone customers generally understand that when they use their cellphones for calls or texts, they are employing nearby cell towers and thus providing information to the carrier, including their general whereabouts.

The issue may not be so clear cut for some members of the Supreme Court, however. In a 2011 concurrence in United States v. Jones, Justice Sonia Sotomayor wrote that, although the third-party doctrine was not at issue in that case, it might in the future be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. And Justice Samuel Alito, writing for himself and three other members of the court, noted in Jones that long-term monitoring of specific GPS-location data could impinge on expectations of privacy, but suggested that legislative solutions might be best suited to balance these concerns with public safety in an era of dramatic technological change.

The way in which the Supreme Court resolves these issues in Carpenter will undoubtedly revolve around how the justices view the scope of the issue presented. If the question is, as some suggest, whether the Fourth Amendment does anything to regulate government access to the nearly limitless information stored by telecommunications companies and internet service providers, many of the justices are likely to be reluctant to sign on to an expansive application of traditional doctrines. But if the issue is confined to the particular type of information involved in this case, the specific privacy interests at stake, the judicial mechanism Congress provided to restrict access to the information and the legitimacy of the governments interest in the information, the outcome may well be different.

The privacy concerns raised by the specific information at stake in this case may be far less significant than those attached to other types of information a digital consumer provides to carriers or internet providers. The information obtained in Carpenters case involved only the location of towers used to convey calls and messages, and not, notably, the content of any communication. As the 6th Circuit noted, in the telecommunications context, the Supreme Court has traditionally distinguished between content-related information and information about the mechanisms used to convey the message. And, whatever the precise contours of the line between content and non-content, in this case there seems little doubt that the information was not content-related.

Moreover, unlike the specific GPS coordinates in Jones, accurate to within 100 feet, the information in Carpenter was non-specific, placing the phone as far away as two miles from the towers, and only within a one-third or one-sixth sector of the tower. Nor is the tower identified in records like those at issue in this case necessarily the closest one to the caller, because two people making calls from the same car at the same time may be employing two different towers, depending on, among other things, whether one tower has reached its capacity.

This difference in specificity between GPS data and cell-site information would appear to be significant. Rather than allowing the government to observe what businesses or residences a phone subscriber visits, and thus, as Sotomayor feared, compile a comprehensive record of a persons public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations, the records in this case identified at best a general neighborhood or group of neighborhoods, which, in an urban context, potentially covers hundreds or thousands of businesses and residences.

Nor is the privacy interest in location information, something traditionally exposed to the public and observable by the government, greater than the privacy interest in other types of documents clearly covered by the third-party doctrine. Numbers dialed from a phone, for example, which are far more specific and in many ways more revealing than the location of cell towers, fall squarely within the third-party doctrine and may be accessed without resort to any court order, as the Supreme Court held in Smith v. Maryland. According to United States v. Miller, the same is true of bank records and other financial information, which many consider to be highly personal and private.

And although some litigants and commentators have challenged the voluntariness of a cellphone customers disclosure of location information, cellphone users, as the 6th Circuit noted, generally understand that the phone company completes calls by the use of cell towers and knows what towers are being used to complete a customers calls. Moreover, all carriers provide notice of their privacy policies, which routinely include warnings that information is collected in connection with the provision of a carriers services and that this information may be provided to law enforcement.

The notion that prosecutors routinely abuse their access to this type of information, effectively tracking the whereabouts of citizens for weeks or months and for little or no reason, lacks a legitimate foundation. For one thing, the government conducts no tracking when it gains access to this type of information: The phone company collects cell-site location information for its own purposes and the government, retrospectively, views it based on a court order. For another, prosecutors do not routinely access such information. In fact, in 2016, prosecutors in Queens, New York, the 10th most populous county in the nation with 2.3 million inhabitants, obtained historical cell-cite information only 92 times, each through a court order, out of the more than 54,000 prosecutions in the county that year. And most of those orders covered periods far less extensive than those in this case. Indeed, more than half of the Queens County orders covered 10 days or less, and an additional 22 percent covered 30 days or less. Only seven orders for the entire year exceeded 90 days, and most of those were issued in pattern robbery or burglary investigations like the one in Carpenter, in which a review of records over a longer time period was warranted.

Furthermore, prosecutors access to cell-site location information is limited by judicial intervention. The Stored Communications Act requires a court order based on specific and articulable facts establishing that the information requested is relevant and material to an investigation. Both the citizens affected and the time period covered by the records can be limited in this manner. This is precisely the type of statutory mechanism that Alito suggested in his concurrence in Jones would operate to protect any perceived privacy interest at stake. Indeed, subpoenas for potentially far more personal information, like bank information, credit card statements and call detail information, can be issued in most states without any such check.

Moreover, the legitimate interest of law enforcement in historical cell-site location information in certain cases is very compelling, because it provides an important investigative tool when it may be difficult or impossible to show probable cause. Orders may be used, for example, to obtain the location history of homicide victims to determine their whereabouts immediately prior to their deaths, thereby aiding in the investigation of relevant events and possible causes. Similarly, when multiple legitimate suspects could have motives for committing a crime, location information may exclude some or all of these suspects. Historical cell-site information can also be used to check the reliability of information provided by informants or contained in the statements of accomplices. And, when pattern crimes are alleged, review of cell-site location data can provide critical evidence of, for example, an individuals commission of serial killings or a persons participation in pattern robberies or burglaries like the one in this case, because presence at multiple crime scenes or other relevant locations over a period of many days or weeks is not likely to be mere coincidence. In this way, a Section 2703 order provides an essential investigative tool, often used in conjunction with subpoena requests and other investigative techniques, that imposes minimal intrusions on any legitimate expectations of privacy.

The Supreme Courts decision in Carpenter will thus likely turn on how broadly the justices view the question presented in the case. Whatever the outcome, the Supreme Courts decision is likely to be merely the opening salvo in the legal debate rather than a definitive resolution of the issues raised by law-enforcement access to cell-site location information.

Posted in Carpenter v. U.S., Summer symposium on Carpenter v. United States, Featured, Merits Cases

Recommended Citation: John Castellano, Symposium: Justices poised to consider, or reconsider, Fourth Amendment doctrines as they assess the scope of privacy in a digital age, SCOTUSblog (Aug. 1, 2017, 2:49 PM), http://www.scotusblog.com/2017/08/symposium-justices-poised-consider-reconsider-fourth-amendment-doctrines-assess-scope-privacy-digital-age/

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Symposium: Justices poised to consider, or reconsider, Fourth Amendment doctrines as they assess the scope of ... - SCOTUSblog (blog)

In 1976, in United States v. Miller, the Supreme Court ruled that the bank records of a man accused of running an illegal whiskey-distilling operation were not obtained in violation of the Fourth Amendment, even though law-enforcement officials did not have a warrant, because the bank records contained only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business. Three years later, in Smith v. Maryland, the justices ruled that no Fourth Amendment violation had occurred when, without a warrant and at the request of the police, the phone company installed a device to record all of the phone numbers that a robbery suspect called from his home, leading to his arrest.

These cases are often cited as examples of the third-party doctrine the idea that the Fourth Amendment does not protect records or information that someone voluntarily shares with someone or something else. But does the third-party doctrine apply the same way to cellphones, which only became commercially available a few years after the courts decisions in Miller and Smith? Justice Sonia Sotomayor, at least, has suggested that it should not: In 2012, she argued that the doctrine is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. That question is at the heart of Carpenter v. United States, in which the justices will hear oral argument this fall.

The petitioner in the case, Timothy Carpenter, was accused of being the mastermind behind a series of armed robberies in Ohio and Michigan. Law-enforcement officials asked cellphone providers for the phone records for 16 phone numbers, including Carpenters, that had been given to them by one of Carpenters partners in crime. They relied on the Stored Communications Act, a 1986 law that allows phone companies to disclose records when the government provides them with specific and articulable facts showing that there are reasonable grounds to believe that records at issue are relevant and material to an ongoing criminal investigation; the government does not need to show that there is probable cause to believe that a crime has been committed. Such requests have become a common tool for police officers investigating crimes according to Carpenter, they are made in thousands of cases each year.

Investigators received several months worth of historical cell-site records, which indicate which cell towers a cellphone connected with while it was in use. Based on those records, investigators were able to determine that, over a five-month span in 2010 and 2011, Carpenters cellphone connected with cell towers in the vicinity of the robberies. After his arrest, Carpenter argued that the records should be suppressed because the government had not obtained a warrant for them. But the district court disagreed, and Carpenter was convicted and sentenced to almost 116 years in prison.

A federal appeals court upheld his convictions. Applying the Supreme Courts decision in Smith (among others), it ruled that the government was not required to obtain a warrant because Carpenter could not have expected that cellphone records maintained by his service provider would be kept private. Carpenter then asked the justices to weigh in, which they agreed to do in June.

Carpenter contends that the disclosure of his cellphone records to the federal government was a search for which the government needed a warrant. At the heart of this argument is the idea that, as Sotomayor has suggested, times have changed, and cellphones are different from the more primitive phone technology and bank records at issue in Smith and Miller. Therefore, he tells the justices, they should not mechanically apply their earlier decisions, but should instead use a more nuanced approach that accounts for both the volume and precision of the data that is now available for cellphones. And, in particular, the fact that a third party, such as Carpenters cellphone provider, has access to his cellphone records does not automatically mean that he cannot expect those records to remain private.

But even under Smith and Miller, Carpenter continues, he would still prevail. To determine whether he can expect his records to be kept private, he contends, the justices should look at whether he voluntarily gave the records to his service provider. Here, he stresses, he did not do so in any meaningful way, because he did not affirmatively give information about his location to his service provider by either making or receiving a call. Moreover, he suggests, another factor that the justices should consider his privacy interest in the information revealed by the records weighs heavily in his favor. Most people have their phones with them all the time, he emphasizes, which means that cellphone records can show where someone was and what he was doing at any given time, even in places most notably, at home where he would expect privacy.

In a friend of the court brief, the Electronic Frontier Foundation and other privacy groups echo Carpenters arguments. In particular, the groups highlight how times have changed since the courts third-party-doctrine decisions in the 1970s. Here, they observe, the SCA gives law-enforcement officials access to much more information than just the few days worth of dialed phone numbers at issue in Smith. Moreover, the data that can be obtained under the SCA are generated simply by the act of carrying a phone that has been turned on: It is created whenever the phone tries to send and receive information, generally without forethought or conscious action by the owner.

For the federal government, this case is a straightforward one, regardless of any new technologies like cellphones that may be involved. First, the government contends, Carpenter does not have any ownership interest in the cellphone records turned over to police by his service providers. Those providers, the government reasons, simply collected the information for their own purposes, which included a desire to find weak spots in their network and to determine whether roaming charges should apply.

Second, the government adds, Carpenter does not have any reasonable expectation of privacy in the cellphone records, which only tell the government where his cellphone connected with the towers, without giving it any information about what was said in his calls a core distinction, according to the government. What Carpenters argument really boils down to, the government argues, is that law-enforcement officers could infer from his service-providers records that he was near a particular cell tower at a particular time. But, the government counters, an inference is not a search.

The federal government also pushes back against Carpenters suggestion that broader privacy concerns weigh in favor of Fourth Amendment protection for his cellphone records. Cellphone users like Carpenter know (or at least should know) how their phones work: by giving off signals that are sent to the cellphone providers through the closest tower. Therefore, the government contends, Carpenter assumed the risk that the information would be divulged to police.

Carpenters argument that cellphone records are somehow more private than the financial information that was not protected in Miller has no real support, the government tells the justices. And the information at issue in Carpenters case is more limited than in United States v. Jones, in which the Supreme Court ruled that the installation of a GPS tracking device on a suspects car, without a warrant, violated the Fourth Amendment. In Jones, the government points out, the police used the GPS device to follow the cars movements continuously for 28 days, allowing them to pinpoint the cars location to within 50 to 100 feet. Here, the government emphasizes, the only information that the government received was which tower connected with Carpenters phone when he was making the calls.

Carpenters case is not the Supreme Courts first foray into the intersection of cellphone technology and the Fourth Amendment. In 2014,the justices ruled that police must obtain a warrantto search information stored on the cellphone of someone who has been arrested. In his opinion for the court, Chief Justice John Roberts emphasized that todays phones are based on technology nearly inconceivable just a few decades ago and are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. And the justices made clear that their decision did not render the information on a cellphone completely off limits to police; it just meant that police officers will normally have to get a warrant. The justices may ultimately conclude that, as the federal government argues, giving law-enforcement officials access to information about where a particular cellphone has been is not the same as allowing them to review the kind of detailed personal facts available on the phone itself. But no matter what they decide, their ruling could shed significant new light on what limits the Fourth Amendment will impose on efforts by police to benefit from the significant technological advances in the 21st century.

Posted in Carpenter v. U.S., Summer symposium on Carpenter v. United States, Plain English / Cases Made Simple, Featured, Merits Cases

Recommended Citation: Amy Howe, The justices return to cellphones and the Fourth Amendment: In Plain English, SCOTUSblog (Jul. 31, 2017, 10:57 AM), http://www.scotusblog.com/2017/07/justices-return-cellphones-fourth-amendment-plain-english/

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The justices return to cellphones and the Fourth Amendment: In Plain English - SCOTUSblog (blog)

The bipartisan ECPA Modernization Act of 2017 introduced by Sens. Patrick LeahyPatrick LeahyDigital privacy bill still abandons probable cause for our papers Overnight Tech: Driverless car bill advances in House | Bezos now world's richest person | Tech groups hail new email privacy bill Senate panel advances measure to protect medical marijuana states MORE (D-Vt.) and Mike LeeMike LeeDigital privacy bill still abandons probable cause for our papers McConnell faces questions, but no test to his leadership Overnight Cybersecurity: Senate sends Russia sanctions bill to Trump | Senators unveil email privacy bill | Russia tried to spy on Macron with Facebook MORE (R-Utah) is a welcome correction to a legislative flaw in the Fourth Amendment protections of emails stored in the cloud. Because of a law created before the cloud came to be, emails stored longer than 18 months could be accessed by government agencies without a warrant signed by a neutral judicial officer after presentation of probable cause of unlawful activity.

Citing the most basic Fourth Amendment protocols against warrantless access to emails, the bill was introduced under the premise of fixing that flaw for these older emails in the cloud. The bill, though, still leaves open probable cause-free access to emails and other papers through use of judgeless administrative subpoenas.

A rule of construction in the ECPA Modernization Act that is entirely inconsistent with the sacrosanct warrant and probable cause provisions of the Fourth Amendment is that it shall [not] limit an otherwise lawful authority of a governmental entity to use an administrative subpoena authorized by Federal or State statute.

Administrative subpoenas, also called civil investigative demands, are search writs issued by government agencies and state attorneys general or prosecutors to disgorge private papers. They may be issued without probable cause, and require no before-the-fact review by neutral judicial officers. They may be enforced in court under threat of contempt and other penalties, and courts give Chevron deference to these writs, meaning the issuers of them may in large degree determine the scope of the laws they claim to be enforcing.

In these regards, administrative subpoenas are worse than the general warrants banned by the Fourth Amendment after Americas colonial experience with the Writs of Assistance, which in fact helped foster the American Revolution. The Writs of Assistance targeted colonial merchants, but were at least issued by judges who could determine that legitimate laws were being enforced. These colonial Writs required returns before judicial officers, and government searchers were subject to legislative penalties and even private lawsuits for exceeding the scope of the judicially authorized searches. Some colonial judges even refused to issue these Writs when government officials refused to provide facts under oath.

The administrative subpoena regime abandons the requirement of probable cause both before issuance by the searchers themselves and in after-the-fact judicial hearings to enforce them. Unlike the general warrants under which judges determined the scope of the searches in advance, although leaving the persons, businesses, and places to be searched up to the discretion of the government searchers, administrative subpoenas may be issued based on flawed interpretations of the law and without independently verified facts indicating law may have been violated by the targets.

Administrative subpoenas therefore lack the separation of powers found even in the Writs of Assistance regime. The discretion of searchers under the administrative subpoena regime is therefore broader and in many ways more dangerous to the Fourth Amendment right of security than the Writs of Assistance.

The Boston Globe recently reported that the American Civil Liberties Union of Massachusetts is calling out the explosion in the use of these sanctioned fishing expedition tool[s], and how some state prosecutors have refused to disclose how many they issue. This mirrors my own experience with one state attorney general who ducked a Freedom of Information Act request about the quantity she issues, claiming attorney-client privilege among other excuses not to comply.

Administrative subpoenas are in fact impossible to reconcile with the Fourth Amendment. The very premise of the ECPA Modernization Act is that government may not violate the security of private records unless a judge has issued a warrant after hearing probable cause under oath that facts indicate a law is being broken. Government officials will exploit this expressly sanctioned loophole in the bill and subpoena emails directly from their targets in this probable cause-free administrative subpoena regime. Neither digital nor hard records will be safe from unreasonable government searches and compelled disgorgement.

Mark J. Fitzgibbons is President of Corporate Affairs at American Target Advertising, Inc.

The views expressed by this author are their own and are not the views of The Hill.

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Digital privacy bill still abandons probable cause for our papers - The Hill (blog)