A Supreme Court Case May Affect Your Cellphone Privacy Rights

Professor Orin S. Kerr weighs in on the significance of "Carpenter v. United States," and why the public needs to start following the case.

Cellphone Privacy Rights
July 10, 2017

Last month, the U.S. Supreme Court added Carpenter v. United States to its docket. Professor Orin S. Kerr, Fred C. Stevenson Research Professor of Law, shared his thoughts on a case "that could reshape government data collection and the Fourth Amendment in the internet age."

A Michigan man Timothy Carpenter was convicted of six robberies after his phone company turned over his location data to authorities. The case examines whether the government can get records from phone companies showing the location of customers without first obtaining a warrant. In Mr. Carpenter's case, evidence included information collected from his cellphone carrier without a warrant.

Professor Kerr, who has been following Carpenter v. United States, explains why this is an important case to follow. "For the last century, surveillance law has been based on the idea that you don't have Fourth Amendment rights in business records about how you use services. The government can access your bank records, phone records, or credit card records without implicating your Fourth Amendment rights," he said. "That may change with the Carpenter case: The idea that you don't have rights in your business records held by third-party companies is now being questioned."

When it comes to a case like this, the government has argued it does not need a warrant due to the third-party doctrine—the idea that people who voluntarily give information to third parties such as cellphone companies or internet service providers are aware that they are giving up their reasonable expectation of privacy. The doctrine derives from Supreme Court decisions from the 1970s about phone and bank records, prior to the interconnected digital age. As a result, there are experts who believe that the doctrine should not apply in this case or in today's high-tech world where cellphones and laptops have become ubiquitous. However, Professor Kerr believes the doctrine should apply because "it is essential in the digital world."

"The third-party doctrine is the network equivalent of the idea that you don't have Fourth Amendment rights in public. In the physical world, the government can watch where you go and when you are doing it without triggering the Fourth Amendment," Professor Kerr said. "The third-party doctrine is the same idea in a network environment instead of a physical one. It's important because it is needed to maintain the balance of the Fourth Amendment in a networked world: You should have full Fourth Amendment rights in the contents of your communications, but not in third-party business records about what you have done."

As for Professor Kerr's thoughts on the outcome, he wrote in The Washington Post that "the future of surveillance law hinges on how the Supreme Court rules in this case." This could have broad ramifications for everyone.