For a long time, the Supreme Court has been criticized as tech-phobic and old-school, not keeping pace with technology evolvement. But through Carpenter v. United States, a recent Supreme Court decision regarding the cell-site location information (CSLI) search, I saw a tech-savvy bench vigorously trying to adapt the old Constitutional Law to the ever-evolving technologies.
In case the background is needed, here is a blog post I co-authored last year discussing the major issues implicated. Simply speaking, Carpenter ruled whether CSLI, a type of location data automatically recorded by cell-site towers (where your mobile gets signal from) and maintained by wireless carriers, should be protected under the Fourth Amendment so that the police officers cannot search it warrantlessly. The Sixth Circuit said no – no protection should be given in this scenario – because of two old judicial doctrines, the content/envelope distinction and the third-party doctrine. Both came from the pre-digital era and get increasingly challenged by today’s digital world. In June, 2018 the Supreme Court 5:4 overruled this decision by the Sixth Circuit and confirmed that the Fourth Amendment protects the defendant’s historical CSLI records lasting over six days.
Interestingly, while overruling the lower court decision, the Supreme Court left these two old doctrines largely untouched. Justice Roberts who wrote the majority opinion of Carpenter dodged the content/envelop doctrine and declined to extend the third-party doctrine to CSLI, despite the pretty straightforward fact that the CSLI was in the hands of a third-party – usually a sufficient condition to apply the third-party doctrine. Because CSLI is uniquely sensitive, the Court said.
How does Carpenter adapt the Constitutional Law?
The third-party doctrine traditionally holds no privacy interests on the information submitted to third-parties. The rationale is that, when people give their information to a third-party like a wireless carrier, a telephone company, or a bank, they simultaneously relinquish their expectation to privacy by voluntarily assuming the risks that the third-party may disclose their data to others including the government.
Before Carpenter, this doctrine was a bright-line rule without exceptions. As long as the information has been handed over to a third-party, the privacy interests attached immediately get vanished. Following this rationale, the Supreme Court denied the Fourth Amendment protections on the phone numbers dialed (Smith v. Maryland) and the bank records (United States v. Miller), which the police can easily get without any warrant.
Carpenter revolutionarily changed this. Citing Miller, Justice Roberts said that the third-party doctrine does not only look at whether the information was maintained by a third-party, but also need to check the nature of the information itself. The Miller court did refer to the nature of the information, for the purpose of strengthening its denial of the defendant’s privacy interests on his bank records. To me, this nature-test in Miller is a peripheral argument. But then, it gets escalated to a central role in Carpenter. Finding that CSLI has a “unique nature” in its potential to reveal intimate personal information, Justice Roberts distinguished CSLI from bank records and phone numbers and followingly, cut CSLI off from the third-party doctrine world.
How does Carpenter find the “unique nature” of CSLI?
To find that CSLI is unique, the Supreme Court justices in Carpenter demonstrated a high level of contemporary knowledge on the technological capabilities and the social practices. The Court understood that cell-site towers have directional antennas to divide the covered area, and that CSLI is “a time-stamped record” written into the wireless carriers’ system at specific timing points. The Court knew how long CSLI would be kept in the system and how precise it can be used to pinpoint a phone’s location (“within 50 meters”). The Court was even familiar with the development trend of cell-site technology and how that development may further facilitate the police tracking.
In parallel to the Court’s technology mastery is its sharp understanding in how society has responded to and interacted with the evolving technologies. The majority stated that there were “396 million cell phone service accounts” in the US where 326 million people lived. People nowadays carry their cell phones to everywhere including private residences, doctor’s offices, political headquarters, etc. Allowing the government to easily obtain people’s historical CSLI would equal a massive dragnet that “runs against everyone,” which the Court found conflicts with the original intent of the Fourth Amendment drafters.
Based on these tech-savvy observations, together with its previous experience of the GPS location tracking in United States v. Jones, the Court concluded that CSLI represents a “seismic shift[] in digital technology” where the third-party doctrine should diverge – since Carpenter, not all data maintained by a third-party should necessarily lose the Fourth Amendment protection and data of a similarly sensitive nature as CSLI should be protected.
Actually, the Court’s willingness to dig into the details of technological advancements and social changes to refit the Constitution accordingly already surfaced in earlier cases. In Kyllo v. United States (2001), a case Carpenter heavily relies on, the justices fully demonstrated their mastery of technique details of a thermal scanning device, as well as the awareness and comprehension of the societal implications of the tool (like the nuances of “general use” or not). Later in Riley v. California (2014), the Court also modernized the old Fourth Amendment based on a recognition that cell phones had become “a pervasive and insistent part of daily life” like “an important feature of human anatomy.” Riley even analyzed the remote wiping and the data encryption techniques.
Conclusion
Carpenter is a controversial decision. It attracted a lot of of criticisms such as its limitation as a narrow decision and lack of a clear standard to guide future cases, or the Court over-actively engaging in Congress’ legislative job. While Carpenter may open many new questions and new arguments waiting to be solved, we can also see the Supreme Court’s hard efforts in adapting the old Constitution to ever-evolving technologies and society while balancing the need of respecting the judicial principles of stare decisis or judicial restraint. There’s still a long way to go and this balance may never reach perfect harmony as technology and society will continue evolving rapidly and the Court will continue to be confronted with challenges arising from these advancements. Regardless, we should still applaud to the Supreme Court for vigorously stepping forward into the technology age, moving from tech-phobic to tech-savvy.
