Digital Privacy and the Fourth Amendment
On November 29, 2017, the U.S. Supreme Court heard Carpenter v. United States. The pending case is about much more than just trial evidence — it’s also about protection of digital privacy under the Fourth Amendment, which applies to all users of technology, from cell phones, to e-mail, to social media. Right now, essentially the only way you can avoid being digitally surveilled is to opt out of using certain technology, social media, or online services, which is virtually impossible in our modern world — and you shouldn’t have to quit these things in order to safeguard your own privacy.
In April 2011, four men were arrested in connection with a series of armed robberies. When Timothy Carpenter confessed to the crime and gave his cell phone number to the FBI (as well as the cell phone numbers of the other men involved), the FBI used this information to track the location and movement of the phones, ultimately incriminating him. Carpenter argued that the search and seizure of the cell phone records without a warrant is a violation of the Fourth Amendment, which guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects.”
However, this situation is complicated by the third-party doctrine. It states that anyone who shares data with a third party (like a bank or a phone company) should not have any reasonable expectation of privacy. This doctrine was created before our data, pictures, and communications were regularly happening with third-party involvement, leaving us with a sizeable digital gap.
In a step towards protecting this right, Carpenter argued that searching cell phone data without a warrant violates the Fourth Amendment. Ashley Baker of The Hill recently took things a step further, calling on Congress to protect the data privacy of everyday citizens who use the cloud.
Carpenter isn’t the only time our digital rights have been up for debate.The Electronic Communications Privacy Act of 1986 (ECPA) helped to categorize some digital information as “paper and effects,” which do benefit from the protection of the Fourth Amendment. But a lot can change in 30+ years. As a result, several US Senators have introduced the ECPA Modernization Act of 2017 in an attempt to update the ECPA and make it harder to access and store data, both new and old, in the absence of a warrant.
To learn even more about this subject, check out “Supreme Court Agrees to Hear ‘Carpenter v. United States,’ the Fourth Amendment Historical Cell-site Case” by Orin Kerr, a professor at George Washington University Law School.
