Washington Lawyer - November 2018 - 13

GOVERNMENT & GAVEL
CHASING CARPENTER
The case began as a battle over the conviction of Timothy Carpenter, whom a
jury found participated in a series of armed robberies in Michigan and Ohio. In
gathering evidence against Carpenter, the Federal Bureau of Investigation
acquired Carpenter's CSLI without a warrant. With this information, law enforcement officers confirmed he had been near the robbery locations.
Cell phone companies turned over to law enforcement 127 days of records
placing Carpenter's phone at more than 12,000 locations. The records disclosed,
for example, whether he had slept at home on any given night. Under the
Stored Communications Act, investigators had to go to court to obtain the
information, but the showing they had to make under the law was a lesser
standard than the probable cause needed for a warrant.
In appealing his conviction, Carpenter argued that, under the Fourth Amendment, the FBI needed a warrant to get the stored records of his whereabouts.
For its part, the U.S. Department of Justice argued that, under Smith v. Maryland,
Carpenter had no expectation of privacy for records voluntarily shared with
third parties.
In ruling, Roberts declined to "grant the state unrestricted access to a wireless
carrier's database of physical location information."
Roberts stated that, because of the "deeply revealing nature of CSLI, its depth,
breadth, and comprehensive reach, and the inescapable and automatic nature
of its collection, the fact that such information is gathered by a third party does
not make it any less deserving of Fourth Amendment protection."
In his dissent, Justice Anthony Kennedy warned that the ruling will frustrate
routine law enforcement operations.

the decision neither addressed real-time cell tower data nor did it "call
into question conventional surveillance techniques and tools, such as
security cameras."
Nevertheless, privacy law experts anticipate that Carpenter could potentially
affect how a variety of technology-based businesses would handle the troves
of personal information under their control.
"The case could certainly have a ripple effect beyond Fourth Amendment jurisprudence," says Markham C. Erickson, a Washington, D.C.-based partner at
Steptoe & Johnson LLP and chair of the firm's internet, telecom, and technology
practice group. "It's going to be difficult to apply going forward. What other
business records are potentially affected?"
Kimberly Kiefer Peretti, a partner at Alston & Bird LLP and a former Justice
Department cybercrime prosecutor, says she anticipates Carpenter will result in
lawsuits over how and whether to apply third-party doctrine in the context of
digital data.
"Carpenter underscores the Court's underlying concern with the large volume of
data made available through ubiquitous digital technologies," Peretti says. "The
Court's express recognition of a privacy interest in a comprehensive record
- even where the record was not generated by the individual in question,
and even where the record was not in the possession of that person - is a
key shift in the evolution of Fourth Amendment privacy rights. This shift may
indirectly impact or influence how companies handle digital data that they
generate and collect."
Anna Stolley Persky is a regular contributor to Washington Lawyer.

Kennedy wrote that cell-site records are "uniquely suited to help
the government develop probable cause to apprehend some
of the nation's most dangerous criminals: serial killers, rapists,
arsonists, robbers, and so forth."

COURTS SEEK CLARITY
For the last decade or so, the Court has been
struggling with how to handle privacy in the
digital age. Carpenter, privacy law experts say,
builds on the 2012 ruling in United States
v. Jones in which the Court found that police
needed a warrant before placing a GPS
tracker on a vehicle. A few years later, in Riley
v. California, the Court found that law enforcement needed a warrant to search an individual's cell phone even during an arrest.
In Jones, the late Justice Antonin Scalia,
writing for the majority, ducked the issue of
third-party doctrine, instead using a trespass
theory and focusing on the placement of the
GPS tracker on an individual's car, his private
property. Justice Sonia Sotomayor, in an oftcited concurrence, lamented the risks that
new technologies pose to individual liberties.
With Carpenter, the majority on the Court
now appears to be aligning itself with
Sotomayor's concern over the availability
of data, although the Court tried to limit
the scope of the ruling. Roberts stated that
Sketches by Art Lien / courtartist.com

NOVEMBER 2018

WASHINGTON LAWYER

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Washington Lawyer - November 2018

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