Reference no: EM133620917
Assignment:
One theme we have explored this semester is the courts' ability to apply long-standing Fourth Amendment principles to law enforcements' efforts to collect new (and maybe not-so-new) types of digital evidence, such as cell phone contents and cell phone location data, and various types of dialing, routing, addressing, and signaling information derived from telephone and internet communications.
United States v. Carpenter is one of the most recent and significant examples of this phenomenon. As you know, the narrow holding of Carpenter was that the government's collection of six days worth of historical cell site location records (from the cell phone carrier) about the approximate location of Carpenter's phone constituted a Fourth Amendment search. Therefore, the government violated Carpenter's Fourth Amendment rights when it obtained such records via the Stored Communications Act, instead of getting those records through a search warrant required to be supported by probable cause.
The Court viewed the historical cell site location records as "detailed, encyclopedic, and effortlessly compiled," and concluded that Carpenter maintained a reasonable expectation of privacy in that information. As we have discussed, the implications of this reasoning are potentially far-reaching. Attempting to lessen the potential impact on criminal investigations, Chief Justice Roberts stated:
Our decision today is a narrow one. We do not express a view on matters not before us: real-time [cell site location information] or "tower dumps" (a download of information on all the devices that connected to a particular cell site during a particular interval). We do not disturb the application of Smith and Miller [i.e., the "third party doctrine"] or call into question conventional 3 surveillance techniques and tools, such as security cameras. Nor do we address other business records that might incidentally reveal location information. . . . As Justice Frankfurter noted when considering new innovations in airplanes and radios, the Court must tread carefully in such cases, to ensure that we do not "embarrass the future."
That may be true as a matter of legal doctrine, but as a practical matter, can the Court continue to distinguish between historical cell phone location data on the one hand, and various other types of non-content digital evidence that are obtained from third parties such as phone, email, and internet service providers on the other? I.e., Are the privacy interests with these types of data distinguishable from those at issue in Carpenter? What are the implications for law enforcements' investigations of cybercrimes if Carpenter's reasoning is expanded to these other types of digital evidence, and the so-called "third-party doctrine" is severely diminished or disappears entirely?