Washington Lawyer - November 2018 - 12

GOVERNMENT & GAVEL

AFTER
CARPENTER
Privacy Concerns in the Digital Age
By Anna Stolley Persky

I

n a June decision, the U.S. Supreme Court voiced
its concern over the way in which technology
is encroaching upon our individual privacy. The
majority on the Court found that individuals can
have an expectation of privacy even in the digital
age, at least when it comes to cell phones.
In a majority opinion written by Chief Justice John G. Roberts, the Court ruled,
5 to 4, that federal law enforcement officials generally need a warrant to access
stockpiles of location data about individuals. In essence, the Court in Carpenter
v. United States found that individuals have an expectation of privacy in their cell
site location information (CSLI) history. CSLI is automatically created whenever
an individual's cell phone is turned on, and then is automatically stored by
private companies for years afterward.
12

WASHINGTON LAWYER

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NOVEMBER 2018

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"The Court here recognizes our new networked reality that our phones are our
private spaces even when we carry them in public," says Michael W. Carroll, an
American University Washington College of Law professor and co-director of
the law school's Program on Information, Justice and Intellectual Property.
The Court's decision in Carpenter will have an immediate impact on law enforcement investigations, says Kirk J. Nahra, a partner specializing in privacy law at
Wiley Rein LLP. The decision will make it "harder for the government to get
access to the vast array of information out there," Nahra says.
Carpenter could lead to confusion and litigation as to when and to what extent
individuals have a reasonable expectation of privacy in their digital records held
by third parties, says Edward J. McAndrew, co-practice leader of Ballard Spahr
LLP's privacy and data security group.
"What about IP addresses? Is there a privacy interest in those?" McAndrew asks.
"If law enforcement has to get a warrant every time it seeks information from
an internet service provider about the use of a particular IP address, that's going
to make things very difficult."



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Washington Lawyer - November 2018

Table of Contents for the Digital Edition of Washington Lawyer - November 2018

Washington Lawyer - November 2018
Contents
Digital Extras
Your Voice
From Our President
Career & Professional Development
Calendar
Government & Gavel
Smart Cities: The Future of Living
I, Lawyer? Ai & the Law
Cybersecurity: Preparing for the Inevitable
Member Spotlight
Global & Domestic Outlook
Worth Reading
Media Bytes
Attorney Briefs
Ask the Ethics Experts
Disciplinary Summaries
Community & Connections
Last Word
Washington Lawyer - November 2018 - Washington Lawyer - November 2018
Washington Lawyer - November 2018 - Cover2
Washington Lawyer - November 2018 - 1
Washington Lawyer - November 2018 - Contents
Washington Lawyer - November 2018 - 3
Washington Lawyer - November 2018 - Digital Extras
Washington Lawyer - November 2018 - Your Voice
Washington Lawyer - November 2018 - From Our President
Washington Lawyer - November 2018 - 7
Washington Lawyer - November 2018 - Career & Professional Development
Washington Lawyer - November 2018 - 9
Washington Lawyer - November 2018 - Calendar
Washington Lawyer - November 2018 - 11
Washington Lawyer - November 2018 - Government & Gavel
Washington Lawyer - November 2018 - 13
Washington Lawyer - November 2018 - 14
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Washington Lawyer - November 2018 - Smart Cities: The Future of Living
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Washington Lawyer - November 2018 - Cybersecurity: Preparing for the Inevitable
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Washington Lawyer - November 2018 - Member Spotlight
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Washington Lawyer - November 2018 - Global & Domestic Outlook
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Washington Lawyer - November 2018 - Worth Reading
Washington Lawyer - November 2018 - 37
Washington Lawyer - November 2018 - Media Bytes
Washington Lawyer - November 2018 - 39
Washington Lawyer - November 2018 - Attorney Briefs
Washington Lawyer - November 2018 - 41
Washington Lawyer - November 2018 - Ask the Ethics Experts
Washington Lawyer - November 2018 - 43
Washington Lawyer - November 2018 - Disciplinary Summaries
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Washington Lawyer - November 2018 - Community & Connections
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Washington Lawyer - November 2018 - Last Word
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