Because of the Carpenter v. United States case coming up tomorrow, I thought it would be interesting to post about the existing laws relating to the Fourth Amendment and the circumstances concerning how and when privacy is protected.
The Carpenter v. United States case questions the legality of the government obtaining phone data without a warrant. In this case, the United States obtained Timothy Carpenter’s phone information without having proper evidence to get a warrant. A warrant requires probable cause and a description relating to what will be seized and the location of where it will be taken. This case is fascinating because it questions the requirements for warrants that intend to seize online information about criminals as well as whether metadata collection is constitutional.
(1967) Katz v. United States: This Supreme Court case questioned whether the police need to obtain a search warrant in order to wiretap a public phone used by a suspicious person. The police thought that Katz was delivering information related to gambling to clients, and they decided to wiretap a public phone—-they knew he used—to gather evidence against him. The Court ruled in favor of Katz and stated that he had Fourth Amendment Protection. The police’s actions were seen as an unreasonable search and seizure because he had intentionally closed the door of the public phone to have a private conversation. He was seeking privacy in the close phone booth and did not intend for his conversation to be public. The Fourth Amendment applied in this situation to whenever a person had a reasonable expectation of privacy.
(1986) Electronic Communications Privacy Act: Title II of this Act contains the Stored Communications Act which states that users should not expect privacy when entrusting third parties with private information. Wikipedia states, “While a search warrant and probable cause are required to search one’s home, under the third party doctrine only a subpoena and prior notice (a much lower hurdle than probable cause) are needed to subject an ISP to disclose the contents of an email or of files stored on a server.”
(2010) United States v. Warshak: “This case is notable because it is the first case from the United States Circuit Court of Appeals to explicitly hold that there is a reasonable expectation of privacy in the content of e-mails stored on third-party servers and that the content of these emails is subject to Fourth Amendment protection.” (Wikipedia) The decision means that the government cannot seize private emails without a warrant.
EFF adds, “During its criminal investigation, the Department of Justice illegally ordered defendant Stephen Warshak’s email provider to prospectively “preserve” copies of his future emails which the government later obtained using a subpoena and a non-probable cause court order. The government accomplished this “backdoor wiretap” by misusing the Stored Communications Act (SCA) which is only supposed to be used for obtaining emails already in storage with a provider.”
(2012) United States v. Jones: The police attacked a tracker to Jones’ Jeep without a warrant, and they used it to follow him for 127 days. The Court affirmed the judgment of the lower court and held that the installation of a GPS tracking device on Jones’ vehicle, without a warrant, constituted an unlawful search under the Fourth Amendment. (Oyez)
Sonia Sotomayor stated, “that a Fourth Amendment search occurs whenever the government violates a subjective expectation of privacy that society recognizes as reasonable, which is particularly important in an era where physical intrusion is unnecessary to many forms of surveillance.” In the case, it is reasonable to assume that Jones’ vehicle is private property and expect to ensure privacy.
(2012) United States v. Skinner: Sixth Circuit Holds that “Pinging” a Target’s Cell Phone to Obtain GPS Data Is Not a Search Subject to Warrant Requirement. “In United States v. Skinner, the Sixth Circuit held that using the GPS capabilities of a target’s cell phone to track his location did not constitute a Fourth Amendment search, hinging the decision on the lack of a reasonable expectation of privacy under the Katz test.” (Harvard Law Review)
(2014) Riley v. California: David Riley was a member of a gang and involved in a shooting against a rival gang member. During this incident, his car was stolen. A few weeks later, Riley was pulled over—he had somehow gotten a new car—due to an expired license plate. His driver’s license was suspended, and his car impounded. The impounded car required the police to search it, and they discovered firearms in the car. Riley was then arrested, and his phone was taken as a result. Evidence on the phone relating to his involvement in the gang was used by the police to try him to the shooting he had been involved with. The Supreme Court questioned whether the evidence used against Riley was obtained unconstitutionally and an unreasonable search. The Supreme Court ruled in favor of Riley and held that a warrant was required because cell phones hold massive amounts of private information and are unlike other any other item a person carries. A warrant is necessary to go through the contents of an arrestee’s phone.
However, “the Court held that some warrantless searches of cell phones might be permitted in an emergency: when the government’s interests are so compelling that a search would be reasonable.” (Oyez)
Overall, the decisions made in Fourth Amendment cases are confusing. Not all cases have required search warrants, and it’s hard to tell whether one is needed in cases that involve new technologies. The cases listed above serve as a precedent for the petitioner when it comes to requiring a warrant to track cell phone metadata. This case gives the Supreme Court an opportunity to set the bounds of privacy in this interesting age.