Washington Lawyer - December 2017 - 29

in an Age of Surveillance. "The real concern is constraining the discretionary use
of executive power."

A TRIPLE-EDGED SWORD
With the onslaught of cell phones, surveillance cameras, metadata collection,
drones, and facial recognition software, there is no question that the rise of new
technologies has complicated the concept of privacy.
"Technology is a triple-edged sword," says Vladeck. "It makes our lives a lot easier,
but it facilitates the blurring of privacy lines and, at the same time, it empowers the
government to use data in far more pervasive and potentially problematic ways."
Indeed, the justices of the U.S. Supreme Court have already indicated their
concern over potential government abuse of technological advances.
Three years ago, in Riley v. California, the Court unanimously found that the warrantless search and seizure of the digital contents of a cell phone during an arrest
violated the Fourth Amendment. Writing for the majority, Chief Justice John
Roberts Jr. explained that "the fact that technology now allows an individual to
carry such information in his hand does not make the information any less worthy
of the protection for which the Founders fought."
In 2012 the Supreme Court ruled in United States v. Jones that installing a GPS
tracking device on a vehicle, and then using it to monitor the vehicle's movements, constitutes a search under the Fourth Amendment. Justice Antonin Scalia
wrote for the majority, analyzing the case as a traditional Fourth Amendment case
of trespass onto property.
In a concurrence, Justice Samuel Alito, joined by three other justices, offered up
a nuanced view of privacy based upon the severity of the intrusion. "Relatively
short-term monitoring of a person's movements on public streets accords with
expectations of privacy that our society has recognized as reasonable," wrote
Alito, adding that longer-term GPS monitoring would in most instances violate
the Fourth Amendment.
Meanwhile, in her concurrence, Justice Sonia Sotomayor hinted that the Court at
some time may need to address whether the third-party doctrine is appropriate
or "ill-suited to the digital age."
"People disclose the phone numbers that they dial or text to their cellular
providers; the URLs that they visit and the email addresses with which they
correspond to their Internet service providers; and the books, groceries, and
medications they purchase to online retailers," wrote Sotomayor. "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."
With these cases, says Wessler, the Court "strongly explained to the police and the
public that the job of the Fourth Amendment is to preserve the level of privacy
we were able to rely upon before the digital age, to prevent digital technology
from eroding the power of the Fourth Amendment."

PRIVACY VERSUS
GOVERNMENT ACCESS
Some privacy rights experts predict that the justices will, perhaps in the next
few years, reexamine the Katz rule or the notion of third-party doctrine. It is
possible the Supreme Court could address these issues this term in deciding
Carpenter.
Carpenter was accused of being the main organizer of a string of armed robberies, supplying guns and often acting as lookout. One of Carpenter's conspirators confessed to the crime and gave to law enforcement the phone numbers of
individuals he said were part of the conspiracy.

Stephen Vladeck, Hilary Schwab; Nathan Wessler, Molly Kaplan; David Gray, J&S Photography

Americans feel very differently about
their phone companies knowing
where they are at all times and the
government knowing that same
information.
NATHAN WESSLER
ACLU Speech, Privacy and Technology Project

The FBI applied for court orders under the Stored Communications Act (SCA) to
obtain Carpenter's historical cell phone records. Using those records, the FBI
determined that Carpenter's phone was in communication with cell towers
near the location of four robberies that took place between December 2010
and April 2011.
The SCA permits the government to obtain records using "specific and articulable
facts" 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." The standard under the SCA to obtain the records is a lower bar than the
probable cause requirement for a typical search warrant.
Wessler says the case is an opportunity for the Court to "find that large volumes
of information on servers are still protected."
"It just cannot be that the mere act of owning and carrying a cell phone waives
a person's privacy interest," he adds.
However, in its brief to the Supreme Court, the U.S. Department of Justice argues
that Carpenter lacks any subjective expectation of privacy in phone company
records of historical cell-site data because they are business records.
In addition, the Justice Department explains that by engaging in the cellular
network, cell phone users take the risk that their information will be conveyed to
the government. The Justice Department also points out that the lower standard
of a court order allows the government to get information early in an investigation when they lack probable cause and are confronted by multiple suspects.
"Society has a strong interest in both promptly apprehending criminals and exonerating innocent suspects as early as possible during an investigation," Justice
Department lawyers wrote in their brief to the Supreme Court.
But Wessler argues that just because cell phone users allow the phone company
to gather information about them doesn't mean they want the government to
have access to the same information.
"Americans feel very differently about their phone companies knowing
where they are at all times and the government knowing that same information," says Wessler.
The Supreme Court, which was scheduled to hear oral arguments in Carpenter
on November 29, may well issue a narrow decision that does little to alter
contemporary practices, but it seems more likely that its ruling will be vital to
defining the scope of Fourth Amendment jurisprudence for decades to come.

Anna Stolley Persky is a regular contributor to Washington Lawyer. She teaches
information privacy and security law at Penn State Dickinson Law.
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WASHINGTON LAWYER

DECEMBER 2017 29

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