Federal Criminal Defense and CellphonesAt the end of November, the US Supreme Court will examine the application of the so called “third-party doctrine” to cellphone providers disclosing records to law enforcement. The basic principle behind this doctrine is that the 4th amendment does not recognize an expectation of privacy in information voluntarily turned over to third parties. Katz v. United States, 389 U.S. 347, 351 (1967); United States v. Miller, 425 U.S. 435 (1976); Smith v. Maryland, 442 U.S. 735 (1979). Translation: the government does not need to get a warrant to obtain records from your phone providers. In fact, as we will discuss below, they arguably don’t even need probable cause. But in the age of smartphones, how far does this doctrine really reach before it offends the 4th amendment? In Carpenter v. U.S., the government accused 29 year old Timothy Carpenter of being the head of an armed robbery ring that committed 5 robberies in the Detroit area and one in Ohio over a five month span in 2011. Ironically, the target of the robberies was none other than cell phone stores. The FBI, without getting a warrant, obtained 12,898 points of location data from Mr. Carpenter’s cellphone provider during this time.[i] This allowed them to determine his location by connecting his cellphone to the nearest cellphone tower. Unsurprisingly, this information placed Mr. Carpenter in the area of the robberies at or around the time they occurred. Mr. Carpenter tried to suppress this evidence before trial, however, the district court denied his motion. After a two-week trial, he was convicted and later sentenced to 119 years in prison. The appellate court affirmed his convictions and in June the United States Supreme Court agreed to take up Mr. Carpenter’s issue this fall.
The Current State of the Law: No Warrant Necessary:In Mr. Carpenter’s case, law enforcement utilized the Stored Communications Act to obtain location data on his cellphone.[ii] Passed in 1986, this law allows law enforcement to obtain a court order to compel electronic communications from a provider if “the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe the contents of a wire or electronic communication . . . are relevant and material to an ongoing criminal investigation.”[iii] The specific language used there is key. The language “specific and articulable facts” points more to a standard of reasonable suspicion than probable cause. It can simply be said that probable cause requires more. Further, the government is not required to provide notice to the subscriber and the electronic communication providers are immune from civil action for complying with a court order under this statute.[iv] Whether or not this statute or the standard it establishes now survives 4th amendment scrutiny, given the technological advancement in cellphones and all the metadata they contain, will be front and center in this case. Undoubtedly, the Court will also examine the viability of the so-called “third-party doctrine.” The doctrine arises out of the 1970s with two seminal cases: United States v. Miller & Smith v. Maryland.[v] In Miller, the Court held that bank records obtained without a warrant and used as evidence in trial for illegal whiskey distilling did not violate the 4th amendment. Specifically, they found the information was “voluntarily conveyed to banks and exposed to their employees in the ordinary course of business.”[vi] This doctrine then evolved in Maryland v. Smith, where the court found no 4th amendment violation occurred when a telephone provider put a device on a phone with a warrant and at the request of the police. The device recorded all of the phone numbers called from a robbery suspect’s home.[vii] Out of these two cases, the “third-party doctrine” has been applied for decades. In his petition, Mr. Carpenter makes two major points:
- Five months of records was a lengthy disclosure that was a search which required a warrant. Given the advancement of technology and the information it contains since Smith and Miller, the Court should not automatically follow their reasoning & examine it in a modern context.[viii]
- That even under Smith and Miller, he did not “in any meaningful way” voluntarily convey information about his location to his provider by simply making or receiving a call.[ix]
- That Mr. Carpenter has no ownership interest in the cellphone records turned over to law enforcement. Essentially, that this information was collected by the providers for their own purposes.[x]
- There is no reasonable expectation of privacy in records that do not capture the content of the calls but only its location in relation to cellphone towers.[xi]
- That the information gathered only give an inference that he was near a particular cell tower at a particular time and an “inference” is not a search.[xii]
- Cellphone users are aware that modern cellphones transmits signals and data to cellphone towers and therefore assume this risk.[xiii]