Research Project on Carpenter v. U.S.

Introduction

Carpenter v. United States is a pending case before the Supreme Court of the United States. The case deals with the issue of government access to individual historical cellphone locations without a warrant. Through the case, the United States Supreme Court is expected to set a new precedent for future court cases on the application of the Fourth Amendment in the digital age (Henderson 495). The outcome of the case will also determine how the third party doctrine will apply in the contemporary world. This research paper reviews the Carpenter case to establish whether the case lies on the court’s docket in the first place; whether it fits with available precedent and the Fourth Amendment; and how the court would vote in the case, based on the insights of oral arguments and the available legal doctrines. The research paper is based on the argument that the case fits in the Court’s docket; the Court should be both ambitious and cautious in making ruling about the case by supporting the plaintiff’s Fourth Amendment’s rights to liberty and privacy while at the same time being cautious in setting a reasonable law enforcement restraint on the government.

Background of the Case

Between December 2010 and March 2011, the petitioner and three other men committed a series of armed robberies at T-Mobile Stores and Radio Shack (Henderson 496). In April 2011, the police arrested four men suspected to be the perpetrators of the criminal activities. According to police, the role of the petitioner was to organize the thefts and supply guns. When one of the gang members confessed to the crimes as charged, the FBI quickly obtained three court orders based on Section 2703(d) of the Stored Communications Act (SCA). The Act allows the government to request for telecommunication records when it has reasonable grounds to believe that certain forms of electronic communication, records or information, are relevant and material to a criminal case under investigation based on specific and articulable facts. The electronic data showed the location, time and dates of the calls made using the petitioner’s cell phones. In response to the magistrate orders, two mobile network providers, MetroPCS and Sprint, provided 127 days of cell-site records and two-day records of the petitioner’s mobile phone (Henderson 498). The data showed that the petitioner and his co-conspirators were onsite during the time of robbery, and the petitioner’s phone records indicate his participation in the criminal acts.

Using evidence from the cellphone records, the law enforcement agencies charged Timothy Carpenter, the petitioner, with aiding and abetting armed theft, among other offenses. Carpenter took a step to prevent the court from using evidence from the cellphone sites based on Fourth Amendment rights of privacy, and security from unwarranted search and seizure. The District Court denied the motion to stop the use of cell-phone evidence, and the Sixth circuit affirmed. The issue before the Supreme Court is whether the search and seizure of cell phone recodes to obtain location and movements of suspected criminals constitutes the violation of the petitioner’s Fourth Amendment rights.

The Fourth Amendment guarantees individuals the right to secure their property, persons, papers and effects against unreasonable search and seizures (Henderson 501). However, the government relies on the third party doctrine which gives the government the authority to use third-party information as evidence without intruding directly on the person and property of the suspected perpetrator. Traditionally, information submitted voluntarily by individuals to third parties such as internet and telephone network providers are exempted from the Fourth Amendment protection; but the emerging trends and technological advancements in the digital age have led to increasing concerns for the Supreme Court to reconsider its position on the third-party doctrine.  

Granting Writ of Certiorari on the Case

Cases that require the attention of the Supreme Court are worthy of certiorari, that is, a majority of the Supreme Court’s justices have established that the contents and circumstances of the petition are sufficient to put the case in the Court’s docket. The writ of certiorari gives the Supreme Court of the United States the power of reviewing the decisions of state courts of appeal. It is in the discretion of the Supreme Court judges to decide whether to proceed with the case or to refer it back to a junior court. In the case of Carpenter v. United States, the Supreme Court granted Certiorari on June 4, 2017.

The decision made by the Supreme Court judges to place the case on its docket is justifiable because the issue is significantly important. When the third-party doctrine was created in 1960s-1970s, the courts ruled that the Fourth Amendment protection applied to contents of communications rather than the metadata that record communications and third-party business information. The rule was applied in the postal letters of the 19th century, and it was also used in relation to phone calls in 1970s (Henderson 497). However, the principle has not been comprehensively applied to the issues that pertain the highly interactive digital media. Thus, the Carpenter case is extremely important because it will determine whether the traditional basic rule will apply to the digital age or the status quo will be maintained.

The case is important not only because it focuses on cell-site records, but also because it is fundamentally necessary to draw the line between the Fourth Amendment rights and third-doctrine principles in network surveillance. The same framework that has been used to apply the Fourth Amendment to visual surveillance, traditional phone records, and email transactions may be transferred as it is to cell-site records, amended a bit, or substantially amended. Thus, the current case is an important case for future courts to determine whether to rely on the traditional interpretation of the Fourth Amendment or improve it to reflect the changes in communication technologies (Pincus 1). Whether the court rules to sustain the status quo and advise the Congress to create a new Fourth Amendment rule, or reverses the previous Supreme Court cases, the essential elements of the current case will ultimately impact on future cases; hence it is significantly necessary for the Supreme Court to review the case.

The Carpenter case has a significant impact on the fate of Fourth Amendment jurisprudence, especially in regards to the third-party doctrine, considering the recent debates on its application in the digital age (Lee 2017). Therefore, considering the criticality, nature, and importance of the Fourth Amendment doctrines in public policy, the judges were right to grant the case a cert; and consequently, I would vote in favor of such a move.

How the Case Fits with the Available Precedent

The Fourth Amendment has been an issue of legal debate since the 1970s when the courts introduced the third-party doctrine to allow the government to search and seize suspected criminals based on information obtained from third parties. The framework was clearly established in its early stages through the ruling made in United States v. Miller whereby the Court held that the fourth amendment does not prevent the government from obtaining information conveyed to third parties, even if the individual provided the information to the third party with the assumption that it would be used for a limited purpose, and that the third party would not betray the individual’s confidence. This case reaffirmed the decision made in Olmstead v. United States, in which the government’s use of wiretapped private telephone conversation as evidence was upheld by the Court because the information was obtained from third parties and hence the Fourth Amendment rights of the petitioner were not violated.

However, Katz v. United States overruled the decision made in Olmstead v. United States, and extended the protection of individual rights under the Fourth Amendment to include all the areas in which the person has reasonable expectation of privacy. In Katz, the government used an electronic eavesdropping device to tap telephone conversations of Charles Katz who was consequently convicted for transmitting illegal materials on the basis of the recordings.

In Smith v. Maryland, the court overruled Katz and reaffirmed the earlier decisions that established the third party rule. In Smith, the government had installed a pen register on the property of a telephone company to record the numbers that a particular telephone line has called. The majority opinion delivered by Justice Blackmun suggests that a pen register does not constitute a search under the Fourth Amendment search because the defendant disclosed the numerical information willingly to the telephone company and hence did not have a reasonable expectation of privacy in the information that he voluntarily provided.

Since the court ruled in favor of the third-party doctrine in Smith, several other court cases have been established, most of which have consistently recognized the third party doctrine. For example, in the case of United States v. Knotts the police were allowed to use a tracking device called ‘beeper’ to monitor the movement of a car within a short distance because the use of such surveillance item did not infringe on the defendant’s expectation of privacy, and a warrant was not necessary to conduct search and seizure. However, the judges in United States v. Jones ruled that the Global Positioning System (GPS) device used to track movements of the defendant’s vehicle constituted a search under the Fourth Amendment. While not departing fundamentally from United States v. Knotts in his oral argument, Justice Roberts in United States v. Jones suggested that a GPS device should be distinguished from a ‘beeper’ because unlike the latter, a GPS tracking device allows the law enforcement officer to just sit back on their officers and monitor people’s properties such as vehicles wherever they go. This decision showed that the Fourth Amendment could be applied differently in different situations, thus changes have been noticed in most recent developments such as Riley v. California, in which the Court did not challenge the constitutional rights of privacy with regards to digital content.

In Riley v. California, the Court sought to address the search incident to arrest (SITA) doctrine in which the police are allowed to carry out a search on the person and the arrestees’ immediate environment without a warrant in case the officer has a reasonable ground to believe that his safety is at risk, or to prevent escape and destruction of evidence. In Riley, the judges ruled that smartphones do not constitute a threat to the officer’s safety, or facilitate the escape and destruction of evidence; hence the warrantless search and seizure of a cellphone’s digital content during arrest is unconstitutional based on the Fourth Amendment principles.

The various cases that have been decided over time provide a good precedence for the current case because they show how the court has tended to deal with similar situations. It remains to be seen whether the Court will use the same approach used in 1920s in Olmstead v. United States or it will attempt to apply the approach used in the digital era by the judges in Riley v. California. In any case, it is clear that all the court decisions made since the initiation of the third-party doctrine have used the same framework to give different rulings. None of the cases, for instance, has struck down the third party doctrine or established a new Fourth Amendment doctrine to revolutionize the constitution. However, based on the changing nature of information due to technological changes, the Court has noticed the need to interpret the Fourth Amendment differently to reflect the changing realities of the digital age.

Insights from the Oral Arguments

The oral arguments provided in Carpenter v. United States were presented in the Supreme Court on November 9, 2017. Mr. Nathan F. Wessler delivered the oral argument on behalf of the petitioner, and based his argument on Jones, suggesting that the collection of the petitioner’s cell site locations for 127 days constitutes a search (Heritage of Reporting Corporation 3). The presenter argued that the search was protected by the Fourth Amendment because the information search disturbs the person’s long-standing and practical expectation of privacy and freedom of long-term movement in public and private space, and thus the search should require a warrant.

The judges questioned Wessler on what would constitute a long-term situation, and Wessler intimated that 24 hours would constitute a reasonable period for the government to monitor a person’s site location using third-party records. Wessler also used the case of Riley to point out that the historical ideas under the Fourth Amendment doctrine should not fundamentally influence the decisions made in the digital age. Interjecting, Justice Alito noted that Wessler could be hinting the possibility of implementing a revolutionary change to the Fourth Amendment (Heritage Reporting Corporation 86). Wessler replied by saying that contents of electronic communication should be protected due to its sensitivity and the long-standing expectation of the people that their privacy would be protected.

On behalf of the respondent, Michael R. Dreeben began his address by suggesting that technology is new but the legal principles articulated in the Court are not. Mr. Dreeben posited that a cell phone user provides information to the network operators as third parties for the purpose of making business records. When the government asks for the information, it does so in the same context it did in Smith and Miller (Francisco et al 11). Accordingly, the government obtains data about the company’s business transactions rather than the petitioner’s private information and hence the government’s actions do not reflect the violation of the Fourth Amendment’s rights. When Justice Roberts asked whether the creation of information was a joint venture between the individual carrying the cell phone and the network provider, Mr. Dreepen simply responded that the same thing would be said in Smith and Miller. The technological nature of information sharing inherent in a cellphone does not differ in principle with the situation in carrying out bank transactions as it was the case in Smith.

Evaluation of Both Sides

The supporters of the petitioner argue on the basis that the Fourth Amendment principles should not be interpreted in the digital age as it used to be in the traditional approaches of landmark cases such as Smith and Miller. As suggested by Wessler in the court’s oral arguments, electronic communications are not the same as paper letters of the 1800s. Thus, emails are protected, not because they are sealed in transit, but because they are sensitive and private. The electronic information is accessible to the service providers, unlike sealed letters which can only be accessed by the postal corporation through illegal tampering. Therefore, the legal framework with which paper letters were protected should not apply to the digital age.

According to Rotenberg et al (2017), the world for which the ruling in Smith v. Maryland was made no longer exists. Rotenberg et al (2017) provided a merit to the court on behalf of the Electronic Privacy Information Center (EPIC) to address the emerging issues of civil liberty and privacy protection in the digital age. According to the Francisco et al (2017), the U.S. courts err when they apply Fourth Amendment principles that were developed when phones were not portable in a digital era. Nonetheless, none of previous court cases involving the Fourth Amendment have been decided without attracting the public debate. The Supreme Court has a big responsibility in establishing the scope the Fourth Amendment across time and space. Pincus (2017) also suggested that in the same way Riley Court considered the changes brought by the digital media in applying the search-incident-to-arrest doctrine, the same Court should adopt a similar consideration to take into account the realities of changes occurring in the digital age to rule in Carpenter v. United States.

The supporters of the third-party doctrine argue that the legal framework used in the past does not differ in principle with the digital age; hence the third doctrine should be applied in a similar manner as in the previous cases. Varco (2017) suggests that the digital age does not provide justification for changes in the third-party doctrine because it undermines the government’s ability to gain information from a wide range of sources and avert crime. Nonetheless, cell phone users have control over the information they provide to network providers. Varco also explains the idea of substitution effect whereby the third-party doctrine helps to prevent criminals from substituting the public actions of their crimes with private transactions such as making calls to the victim rather than meeting them in person.

Conclusion

Although digital information may be used by network providers for business records and transactions, the sensitivity of electronic communications necessitates the use of a new approach in determining cases related to the Fourth Amendment. While the supporters of the third-party doctrine postulate that the Fourth Amendment principle applies to the digital age, the nature of the information at issue should be considered when determining a case. The sensitive nature of electronic communication requires that the information shared through the cell phone should be protection due to the long-standing expectation of privacy over information shared in the digital media. Thus, I would vote in favor of the petitioner while proposing the establishment of a new Fourth Amendment doctrine through the Congress as a precaution for future Courts.

Annotated References

Court Cases

Katz v. United States 389 US 347 (1967) Retrieved from https://www.oyez.org/cases/1967/35

The court argued that the individual government violated Katz’s privacy because the plaintiff had relied on the privacy of the telephone booth; and that the wiretapping constitutions a physical intrusion under the Fourth Amendment.

Riley v. California 573 U.S. __ (2014) Retrieved from www.oyez.org/cases/2013/13-132.

Justice Roberts held that search and seizure of cell phone content during an arrest is a violation of the Fourth Amendment rights, and the search for digital content should be carried out with a warrant.

Smith v. Maryland 442 U.S. 735 (1979)

Judge Blackmun argued that the installation of pen register does not constitute a search under the Fourth Amendment and hence no warrant is required for search and seizure.

Legal Briefs

Francisco, Noel J., Kenneth Blanco, Michael R. Dreeben, Elizabeth B. Prelogar and Jenny            Ellickson. Brief for the United States. In the Supreme Court of the United States.      Carpenter v. United    States, Case No. 16-402.

Legal counsel provides merit on behalf of the respondent, arguing that the decision of the Court of Appeal should be upheld.

Pincus, Andrew J. Brief of the Center for Democracy and Technology as Amicus Curiae In          Support of Petitioner. In The Supreme Court of the United States. Carpenter v. United            States, Case No. 16-402 (2017).

The Center for Democracy and Technology is an NGO with public interest and focus on privacy and civil liberty in internet and other communications networks. Argued: “The judgment of the court of appeals should be reversed.”

Rotenberg, Marc, Alan Butler, and Jon Davisson. Brief of Amici Curiae Electronic Privacy           Information Center (Epic) and Thirty-Six Technical Experts and Legal Scholars in         Support of Petitioner. In Supreme Court of the United States. Carpenter v. United States,        No. 16-402, 2017.

The Amici, the Electronic Privacy Information Center (EPIC), expresses interest in the case because it is concerned with emerging civil liberties issues and protecting constitutional values. Asks the court to reverse the decision made in the Court of Appeal’s Sixth Circuit.

Varco, Michael. Brief of Amicus Curiae Michael Varco in Support of Respondent. In The             Supreme Court of the United States. Carpenter v. United        States, No. 16-402, 2017.

Michael Varco is a victim of crime with personal obligation to express concerns with the court, He does not want to see changes to the Fourth Amendment that would undermine criminal investigations and hence the Court should affirm the Sixth Circuit of the Court of Appeal.

Oral Arguments

Heritage of Reporting Corporation. Carpenter v. Carpenter. Washington: The Supreme Court of the United States, 2017.

Secondary Sources

Henderson, Stephen E. Carpenter v. United States and the Fourth Amendment: The Best Way      Forward. William and Mary Dill of Rights Journal, 26 (2017): 495-531.

Henderson is hopeful that Carpenter is going to be a turnaround case in the history of the Fourth Amendment. The author postulates that there is no monolithic third party doctrine that can defeat all the constitutional protection for information delivered to a third party.

Lee, Raquel. Carpenter v. United States: The Evolving Relationship Between Advanced   Technology & Personal Privacy. The John Marshall Journal of Informal Technology and   privacy Law, November 20, 2017. Retrieved from http://jitpl.jmls.edu/2017/11/20/carpenter-v-united-states-the-evolving-relationship-between-advanced-technology-personal-privacy/.

This article is based on empirical evidence of mobile phone use. The author provides an objective view about the importance of the case, arguing that whatever decision the court takes has significant implication on the jurisprudence of the Fourth Amendment and the relationship between new media technologies and individual privacy.

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