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Yesterday the Supreme Court granted certiorari in Carpenter v. United States, a case with “enormous implications” for the fate of Fourth Amendment jurisprudence, specifically the hotly-debated “third-party” doctrine. Under the third-party doctrine, information voluntarily given to third parties—such as cell phone companies or Internet service providers (ISPs)—is not protected by the Fourth Amendment, but the developments of the digital age have led to increasing calls for the Supreme Court to reconsider this principle.
Carpenter is a Sixth Circuit case involving police use of cell site records in the prosecution of two men accused of robbing a number of cellphone stores. A ruling on the merits will likely reverberate well beyond the context of policing, however; the third-party doctrine is frequently cited by the government in support of the legality of NSA collection of metadata. Below, we summarize the factual and procedural background of this important case, the Sixth Circuit's opinion, and the implications of the Supreme Court’s grant of certiorari.
Factual and Procedural Background
In April 2011, police arrested four suspects in a string of armed robberies at Radio Shack and T-Mobile stores in and around Detroit. One of the four men confessed that the group had committed the crimes with the help of as many as 15 other men who acted as getaway drivers and lookouts. He also provided the police with his personal cellphone number and the numbers of the others involved.
all subscriber information, toll records and call detail records including listed and unlisted numbers dialed or otherwise transmitted to and from [the] target telephones from December 1, 2010 to present, as well as cell site information for the target telephones at call origination and at call termination for incoming and outgoing calls.
The SCA permits the government to obtain records where “specific and articulable facts show that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation”—a much lower bar than the probable cause needed to obtain a run-of-the-mill search warrant. Three magistrate judges found this standard had been met and issued the sought orders.
The government ultimately charged two of the conspirators, Timothy Carpenter and Timothy Sanders, with six and two counts, respectively, of aiding and abetting robbery affecting interstate commerce and the use or carriage of a firearm in violation of the Hobbs Act (18 U.S.C. § 924(c), § 1951(a)). At trial, Carpenter was fingered as the mastermind of robbery scheme by seven of his alleged accomplices. FBI agent Christopher Hess offered expert testimony explaining that the cell phone data acquired under the SCA indicated that Carpenter and Sanders’ phones were within a half-mile to two miles of the location of each of the robberies around the time the event occurred. Carpenter and Sanders sought to suppress this evidence under the Fourth Amendment, but the district court denied their motion.
The jury convicted Carpenter on all but one of the § 924(c) counts, and Sanders on all counts charged against him; Carpenter was sentenced to 116 years and Sanders to 14 years' imprisonment. Both defendants appealed.
Sixth Circuit Judgment
Judge Raymond Kethledge wrote the majority opinion, which Judge Ralph Guy joined and Judge Jane Stranch joined in part. Judge Stranch wrote a separate concurrence.
The majority opinion begins by walking though the evolution of Fourth Amendment jurisprudence. Although the Fourth Amendment traditionally applied to government trespasses to physical property, the Supreme Court extended these protections to the surveillance of phone calls even in the absence of physical intrusion in the 1967 case Katz v. United States. The rule that subsequently took hold was articulated by Justice Harlan in his famous concurrence recognizing Fourth Amendment protection for expectations of privacy that society recognizes as reasonable.
The Sixth Circuit then summarizes a line of cases distinguishing protected content from unprotected metadata to support the general proposition that “although the content of personal communications is private, the information necessary to get those communications from point A to point B is not.” For example, while individuals may enjoy a reasonable expectation of privacy regarding the content of their telephone calls, they do not have the same expectation for the numbers dialed.
The court concludes that “[t]oday, the same distinction applies to internet communications.” That is, while the Fourth Amendment protects the contents of an email, it does not protect metadata. The court reasons that the business records sought in the present case, specifically cell-site data, are analogous to metadata of phone calls as information that facilitates personal communication. Like the suspected robber in Smith v. Maryland, whose dialed numbers were communicated to the telephone company and then collected by the government by way of a pen register, Carpenter and Sanders must have known that phone companies receive (and record) the type of information collected by the police here.
The court then turns to United States v. Jones, a 2012 case seemingly more favorable to the defendants than Smith or Ex parte Jackson, where the Supreme Court distinguished between the protected contents and unprotected exterior of postal mail. In Jones, the Supreme Court considered a Fourth Amendment challenge to the government’s installation of a GPS tracking device on a suspect’s car. In multiple concurrences, five justices indicated that long-term governmental GPS monitoring of a suspect may infringe on the suspect’s privacy expectations even without physical invasion of property. But the Sixth Circuit majority here distinguishes Jones on the ground that the government here obtained records through a third party. In addition, the court points out that GPS devices “are accurate within about 50 feet,” which is precise enough “to show that the target is located within an individual building,” but that cell-site data can only identify the defendants’ phones from around a half-mile to two mile distance—which makes it about “12,500 times less” accurate than a GPS device.
The court also rejects the defendants’ reliance on Riley v. California, reasoning that in that case the Supreme Court determined that the search of a smartphone’s internal data without a warrant was improper because smartphones hold a vast amount of user data; in this case, by contrast, the data collected was about the location of the phone, rather than the phone’s contents. Moreover, Congress, which is better equipped to handle dramatic technological changes than the courts, has specifically prescribed a method for the government to obtain these types of records in the SCA. The court concludes that the government’s collection of the cell phone location data therefore did not constitute a Fourth Amendment search.
Next, the court briefly addresses Sanders’ contention that the government’s application to obtain the records did not show “reasonable grounds” for believing that the records were “relevant and material to an ongoing criminal investigation,” as required by the SCA. The requested remedy for this alleged shortcoming was suppression of the evidence, but “suppression of evidence is not among the remedies available under the Stored Communications Act.”
The court then addresses several jurisdictional and evidentiary issues. First, conducting a de novo review, the court concludes that the district court correctly denied Carpenter’s motion for acquittal for lack of venue, in light of the testimony of Carpenter’s accomplices that he recruited them, described his plan to them, and made arrangements for supplies all in the Eastern District of Michigan. The court also upholds the district court’s denial of the defendant’s motion to use an FBI special agent’s report to refresh a witness’s memory, as the record shows that the witness disagreed with Carpenter’s counsel about what had occurred but did not appear to have trouble remembering the conversation at issue.
Lastly, the court reviews Carpenter’s two constitutional arguments regarding his sentence: first, that it is so disproportionate to his crimes as to be a violation of the Eighth Amendment, and second, that the use of mandatory minimums in calculating the sentence violated constitutional separation of powers. The court is not persuaded, determining that ample caselaw supports upholding even longer sentences for armed robberies and repeatedly affirms Congress’s authority to dictate mandatory minimums. Finally, the court holds that the trial court did not err in its application of the Sentencing Guidelines.
Judge Stranch's Concurrence
While joining the majority with respect to the defendants’ “statutory, evidentiary, and sentencing claims,” Judge Stranch writes separately to note that “the sheer quantity of sensitive information procured without a warrant in this case raises Fourth Amendment concerns of the type the Supreme Court and our circuit acknowledge in United States v. Jones.” Yet Stranch finds it unnecessary to “reach a definitive conclusion on the Fourth Amendment issue” because of the good-faith exception.
With a nod to Justice Sotomayor’s concurrence in Jones, Judge Stranch argues that it is time for a new test that takes into account the complications of applying Fourth Amendment doctrine to twenty-first-century facts. First, Judge Stranch expresses concern about the volume of governmental tracking that is permitted under current tests. This concern was previously acknowledged by the Sixth Circuit in United States v. Skinner, where it stated: “There may be situations where the police, using otherwise legal methods, so comprehensively track a person’s activities that the very comprehensiveness of the tracking is unreasonable for Fourth Amendment purposes.”
Judge Stranch also expresses concern about the application of “business records” precedents to records that reveal personal location information and the fact that existing tests don’t seem to impose temporal limits on the legal collection of such information. Here, for example, the records procured by the police spanned 127 days for Carpenter and 88 days for Sanders. However, given that there does not seem to have been any misconduct in obtaining the information on the part of the FBI in this case, Judge Stranch concurs in the judgment based on the good-faith exception that protects officers acting in reasonable reliance on a statute or warrant, even if that statute or warrant is constitutionally deficient.
Judge Stranch concludes by addressing the majority’s concerns about institutional competence:
Determining the parameters of the Fourth Amendment is the task of the judiciary. See United States v. Windsor, 133 S. Ct. 2675, 2688 (2013) (quoting Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427 (2012)). The runaway pace of technological development makes this task more difficult. But the job is ours nonetheless and the circumstances before us lead me to believe that we have more work to do to determine the best methods for assessing the application of the Fourth Amendment in the context of new technology.
Implications of Supreme Court Review
In agreeing to hear the case, the Supreme Court may be signaling that it is prepared to address some of the concerns raised by Judge Stranch in her concurrence. And Judge Stranch is far from alone—as highlighted in Carpenter and Sanders’ cert petition, the fact that there have been “18 separate majority, concurring, and dissenting opinions” across five circuit courts in similar cases indicates that courts across the country have strained to apply old doctrine to new technology. Petitioners also argue that “[t]his struggle . . . reflects, at least in part, scholarly criticism of the expansive application of the third-party doctrine beyond the kinds of records at issue in Smith and [United States v.] Miller.”
The government relies on the Sixth Circuit’s majority opinion in its brief in opposition to certiorari, but argues in the alternative that, as Judge Stranch points out, the government’s actions can be justified under the good faith exception even if this application of the SCA runs afoul of the Fourth Amendment. Petitioners similarly offer a narrow take on their request, arguing that it is not necessary for the Court to “reassess the continued validity of the third-party doctrine in every possible context,” but that “it is critically important to clarify the scope of analog-age precedents to digital surveillance techniques.”
The Court may be willing to oblige them. Of particular interest is Justice Sotomayor’s concurrence in Jones (cited by all sides), which highlights the impracticability of the third-party doctrine in the digital age:
More fundamentally, it may 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. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as Justice Alito notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” and perhaps not.
I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.
Along with Justice Sotomayor, Justice Gorsuch (who, as Sarah Tate Chambers has highlighted in three articles for Lawfare, tends to deeply engage with the technology at issue) may also be a proponent of articulating a new Fourth Amendment rule for these types of situations.
Beyond the criminal context, this case also has ramifications for ongoing litigation unmentioned in the briefing: NSA metadata surveillance. On this subject, too, there is a split in the lower courts. As a recent CRS report highlights, many district courts in NSA suits have chosen to treat the metadata as analogous to the phone numbers collected by pen register in Smith (see, e.g., the S.D.N.Y. decision in ACLU v. Clapper). But some judges, like Judge Richard Leon in Klayman v. Obama, have held that the third-party doctrine does not apply in the context of the NSA metadata program. (The ruling in this case was ultimately stayed—see Lawfare’s coverage here, here, and here.)