A Supreme Court call on the third party doc­trine

The Fourth Amend­ment should ap­ply to per­sonal phone data

The Washington Times Daily - - OPINION - By Brent Sko­rup and Melody Calkins Brent Sko­rup is a re­search fel­low at the Mer­ca­tus Cen­ter at Ge­orge Mason Univer­sity. Melody Calkins is a Google Pol­icy Fel­low with Mer­ca­tus.

This week, con­sti­tu­tional law ex­perts and the law en­force­ment com­mu­nity were abuzz after the U.S. Supreme Court added Car­pen­ter v. United States to its docket, a case that could re­shape gov­ern­ment data col­lec­tion and the Fourth Amend­ment in the In­ter­net Age. The Fourth Amend­ment as­serts that the “right of the peo­ple to be se­cure in their per­sons, houses, pa­pers, and ef­fects, against un­rea­son­able searches and seizures, shall not be vi­o­lated.” Ti­mothy Car­pen­ter, the pe­ti­tioner in this case, al­leges that his Fourth Amend­ment rights were vi­o­lated.

The case comes at a time when do­mes­tic surveil­lance by in­tel­li­gence agen­cies is un­der scru­tiny, and smart­phone and In­ter­net records are play­ing a greater role in law en­force­ment in­ves­ti­ga­tions. It raises an im­por­tant le­gal ques­tion about the ap­pli­ca­bil­ity of old doc­trines that give the gov­ern­ment im­mense power in the In­for­ma­tion Age.

Car­pen­ter was con­victed of tak­ing part in six armed rob­beries in Michi­gan and Ohio. The FBI’s ev­i­dence at trial in­cluded in­for­ma­tion col­lected from his cell phone car­rier with­out a war­rant, in­clud­ing lo­ca­tion in­for­ma­tion that placed him in the vicin­ity of the rob­beries. Po­lice al­most cer­tainly could have got­ten a search war­rant for Car­pen­ter’s phone records. The ap­peals court up­held his con­vic­tion and dis­missed his ar­gu­ment be­cause, as most courts hold in th­ese cases, per­sonal in­for­ma­tion gath­ered from busi­nesses like phone com­pa­nies is not a “search” or “seizure” and doesn’t re­quire a war­rant.

Be­fore the cre­ation of the Web or smart­phones, courts de­vel­oped what’s known as the “third party doc­trine” for Fourth Amend­ment cases. This doc­trine denies that in­for­ma­tion turned over to a third party — like phone call and lo­ca­tion in­for­ma­tion au­to­mat­i­cally trans­mit­ted to a phone com­pany when plac­ing a call — is pro­tected by Fourth Amend­ment. The doc­trine de­rives from Supreme Court de­ci­sions from the 1970s about phone and bank records.

To­day, tech­no­log­i­cal ad­vance­ments mean we each turn over tremen­dous amounts of per­sonal data to third par­ties sim­ply with rou­tine use of the dig­i­tal ser­vices of our age. New ser­vices that trans­mit data to the In­ter­net cloud, like “smart homes,” voice-ac­ti­vated de­vices, and Google Docs, of­fer law en­force­ment an even big­ger trea­sure trove of per­sonal records that, un­der the third party doc­trine, does not re­quire a war­rant to col­lect.

The mere fact that the Supreme Court agreed to hear the Car­pen­ter case was a small vic­tory for civil lib­er­ties groups. The third party doc­trine is a blunt in­stru­ment that, in our con­nected world, per­mits too many low-value “fish­ing ex­pe­di­tions” by law en­force­ment. Cel­lu­lar phone com­pa­nies in par­tic­u­lar are in­un­dated with law en­force­ment sub­poe­nas ev­ery year for user data, in­clud­ing user lo­ca­tion. Ver­i­zon, for in­stance, re­ported that the gov­ern­ment is­sued more than 120,000 sub­poe­nas to the com­pany in 2016 — over 350 per day. Le­gal teams at Google, Face­book, Ama­zon and Uber are re­quired to sift through sim­i­lar gov­ern­ment re­quests for in­for­ma­tion.

The po­lit­i­cal right and left have bris­tled in re­cent years against in­tru­sive and of­ten se­cre­tive gov­ern­ment data col­lec­tion. Con­ser­va­tives were alarmed when The Wall Street Jour­nal broke news last Oc­to­ber that fed­eral agents in South­ern Cal­i­for­nia had co-opted state li­cense plate read­ers and drove around a park­ing lot to col­lect in­for­ma­tion about thou­sands of gun show at­ten­dees. For years, po­lice depart­ments around the coun­try have spent mil­lions ac­quir­ing “cell site sim­u­la­tors” that jam cel­lu­lar sig­nals and col­lect data from hundreds of nearby smart­phone users. Pro­gres­sives have al­leged that th­ese de­vices are used to iden­tify peo­ple at mass protests.

The third party doc­trine denies that such in­for­ma­tion can ever be un­rea­son­ably seized or searched. As the Cato In­sti­tute ar­gues in its am­i­cus brief in the Car­pen­ter case, it’s time for the court to strip away the decades of pri­vacy doc­trine that has per­mit­ted po­lice data col­lec­tion to metas­ta­size.

If the court takes up the Fourth Amend­ment is­sues, it should scrupu­lously ap­ply the Fourth Amend­ment’s lan­guage: Are Car­pen­ter’s phone records “pa­pers” or “ef­fects?” Were they searched or seized? Was the search or seizure un­rea­son­able? Courts ask th­ese ques­tions in other crim­i­nal cases, but not when in­for­ma­tion leaves some­one’s home or de­vice. Jus­tice must be served, but the third party doc­trine short-cir­cuits what should be a de­mand­ing con­sti­tu­tional anal­y­sis that pro­tects us all.

Con­tracts be­tween in­di­vid­u­als and phone and app com­pa­nies af­firm the con­fi­den­tial­ity of sen­si­tive in­for­ma­tion, and courts should al­low only rea­son­able searches of that data. We should not re­lin­quish Fourth Amend­ment pro­tec­tions the mo­ment a third party is in­volved — es­pe­cially in an era when de­vices in our pock­ets au­to­mat­i­cally trans­mit data.

We should not re­lin­quish Fourth Amend­ment pro­tec­tions the mo­ment a third party is in­volved.


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