Narrow Carpenter Decision Leaves Much of Surveillance Debate Unaddressed
The Supreme Court’s Carpenter decision is a victory for privacy advocates, said experts and observers in recent interviews, but the court didn't address some emerging police surveillance technologies in its narrow decision (see 1806220052 and 1806290064).
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A five-member court majority said the government’s collection of at least seven days of cellsite location information (CSLI) constitutes a Fourth Amendment-protected search, meaning police must obtain warrants. In 2016, police sent about 125,000 requests to AT&T and Verizon for CSLI data, according to company transparency reports.
Womble Bond attorney Ted Claypoole, who represents telecom clients and specializes in privacy, told us this is the first case establishing exceptions for the third-party doctrine. That doctrine established that people who freely offer data to third parties have “no reasonable expectation of privacy.” But Cato Institute Director-Project on Emerging Technologies Matthew Feeney said Carpenter v. U.S. is “hardly an all-encompassing ruling.” He said technologies left unaddressed include aerial surveillance, a practice the Baltimore Police Department was criticized for; license plate tracking; and facial recognition. “The court was very careful in Carpenter to make sure that the ruling only affected the kind of surveillance in the case,” Feeney said.
Constitution Project Senior Counsel Jake Laperruque said the decision doesn’t address real-time tracking, national security or use of other common law enforcement devices like cellsite simulators, often called StingRays. The Department of Homeland Security and DOJ issued policy rules in 2015 for cellsite simulators, saying police need warrants for StingRay use, but it’s a voluntary policy that can be withdrawn at any time without public disclosure. This is one area where Congress can provide a standard, said Laperruque.
Monument Policy Group lobbyist Chan Park, who represents Reform Government Surveillance, expects legislative efforts to further strengthen privacy and Fourth Amendment protections by statute based on Carpenter. More privacy-minded lawmakers will introduce legislation on location privacy, which was the focus of Carpenter, plus anything involving third-party collection of data, he said. Carpenter will also have implications next year when Congress takes up reauthorization of the USA Freedom Act, a 2015 law that ended the NSA’s bulk collection of phone records and established a new statutory framework for the agency’s data collection practices, requiring more targeted queries, he said. Park called Carpenter a starting point for that conversation.
Carpenter also further incentivizes lawmakers to push for reform of the Historic Communications Act and the Electronic Communications Privacy Act, Park said. There have been ongoing efforts from Senate and House lawmakers to alter warrantless access practices for email and electronic data stored by third parties: “This will motivate members of Congress to keep pushing for that.” Their hand was strengthened with the Supreme Court citing decisions like U.S. v. Warshak favorably, he said. In Warshak, the U.S. Court of Appeals for the Sixth Circuit said a warrant is required to obtain email content.
Committee for Justice Director-Public Policy Ashley Baker noted the disappointment Justice Neil Gorsuch expressed in his lone dissent that the court did not more broadly address the third-party doctrine. Baker said Gorsuch’s dissent was essentially a concurrence but argued the third-party doctrine is irreconcilable with the Fourth Amendment when it’s applied to technology.
Dorsey & Whitney compliance attorney Robert Cattanach, an expert on constitutional challenges to government overreach, said Carpenter is evidence the privacy-surveillance pendulum is still swinging in the direction of privacy advocates. He called it a continuation of U.S. v. Jones, a 2012 Supreme Court decision that said the FBI’s GPS tracking of a vehicle constitutes a search under the Fourth Amendment. The high court is troubled by how much technology has opened the average citizen up to an extraordinary amount of scrutiny, he said: Jones “was a very close decision, very controversial. [Carpenter] takes that a step farther, and I don’t think the pendulum is done swinging.”