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  • Tom Cummins

Why the Court's Momentous Term Matters: Privacy v. Security

1 First, No. 2

The Court is back in session, wrapping up the first week of its momentous new term. Today, we preview an upcoming blockbuster testing privacy rights in the digital age.

Or, as one of the nation’s preeminent Fourth Amendment scholars, Professor Orin Kerr, observes, “It’s not an exaggeration to say that the future of surveillance law hinges on how the Supreme Court rules in the case.”

Carpenter v. United States

The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Under the longstanding “third-party doctrine," however, the Fourth Amendment does not protect information shared with someone (or something) else.

At one level, the doctrine is simple common sense. As Orin Kerr explains, “One of the most basic ideas in Fourth Amendment law is what you might call the eyewitness rule: The government can always talk to eyewitnesses. . . . There’s just no Fourth Amendment right to prevent people from talking about what they saw you do.”

But today’s cellphones, internet applications, and“smart” (internet-connected) devices are far from ordinary witnesses. By design, they gather mountains of data about you, the user, much of which is highly personal.

Your cellphone tracks your location. Your browser tracks your internet activity. Your cloud storage program tracks your documents. Your smart watch, like The Police song, tracks your every step you take, every move you make, and knows when you're asleep and when you're awake. And your smart TV tracks tracks what you watch, and potentially, what you say.

All of this data is transmitted to someone (or something) else: the cellphone company, the internet service provider, the cloud storage provider, and any number of others. Does this transmission mean that there's no Fourth Amendment protection for this data?

That, in a nutshell, is the potential implication at issue in Carpenter. The facts of the case are these.

Timothy Carpenter might be involved in a string of armed robberies, the government suspected. So they got Mr. Carpenter's historical "cell-site location" records from two cellphone companies (without a warrant), which revealed his movements over 127 days. Sure enough, he was in the area when the robberies were committed. He was convicted and sentenced to roughly 115 years.

On appeal, the Sixth Circuit Court of Appeals, like every other circuit that has addressed the issue, concluded that the government's conduct was permitted under the Fourth Amendment. And that should have been the end of the matter.

The Supreme Court regularly hears issues that divide the circuits. But the Court rarely hears issues that unite them. Breaking from this familiar pattern, however, the Court has agreed to hear Mr. Carpenter's case.

Perhaps the Court disagrees with the circuits on the balance to be struck between privacy and security. Perhaps the Court simply wants to offer more definitive guidance for such a profoundly important issue for contemporary society.

Whatever the case, here we are, eagerly looking forward to what is shaping up to be a potential landmark decision on digital privacy v. security in the twenty-first century.

About 1 First

The U.S. Supreme Court is located at 1 First Street, NW, Washington DC. This blog, 1 First, will offer periodic observations about the Court, the questions it takes up, and the answers it provides.

About the Author

Tom Cummins is the founder of Potomac Litigation. He litigates complex cases in Virginia and the District of Columbia.

His recent briefs to the U.S. Supreme Court are available here and here, and the Court's decisions on those cases are available here and here.

His scholarship about the U.S. Supreme Court has been featured on SCOTUSBlog, among other places, and a sampling is available here and here.

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