If your cell phone is on, your location is known, tracked and recorded, whether you are in your home or in public. As you move around, your location history is created and stored by the carrier, numerous applications on the device, and potentially even the manufacturer of the device or operating system provider. Your consent to capture this information, whether rough location or very granular, may be tacit, inherent in the application’s usage, or freely given when you activate, install or operate the device. If nothing else, most people understand this, and more, most people today expect their location to be found, and quickly, in an emergency when they call 911.
But should your historical location information be protected from government searches by the 4th Amendment? I think the question is too narrowly drawn -- in a world where everything that can be connected to the Internet will be connected, and everything that can be collected about a person’s interaction with that network will be collected, can we let the government sift through the mounds of Big Data that will be generated and collected in the future by multiple platforms and providers without a warrant?
In Carpenter v. United States, the Supreme Court will decide whether a warrant is required for the government to obtain a cell phone customer’s location history. The Sixth Circuit succinctly explained why, in its view, no warrant was required to obtain this information:
The business records here fall on the unprotected side of this line. Those records say nothing about the content of any calls. Instead the records include routing information, which the wireless providers gathered in the ordinary course of business. Carriers necessarily track their customers’ phones across different cell-site sectors to connect and maintain their customers’ calls. And carriers keep records of these data to find weak spots in their network and to determine whether roaming charges apply, among other purposes. Thus, the cell-site data—like mailing addresses, phone numbers, and IP addresses—are information that facilitate personal communications, rather than part of the content of those communications themselves. The government’s collection of business records containing these data therefore is not a search.
The case has generated a lot of discussion and thoughtful analysis. If you follow Professor Kerr’s blog, his posts on the topic provide a clear analysis of the case, but the Twitter discussions with @OrinKerr and other 4th Amendment experts have been even more interesting. There is wide disagreement about the application of 4th Amendment law to the facts of the case; whether it matters that a customer voluntarily discloses their location to the provider when using the phone; whether the duration of the tracking matters; whether the degree of precise location matters; whether location history is a business record of the provider and whether users can have any expectation of privacy in such records; and of course, whether it matters if location is just information about a communication rather than its content. All of these things have been debated on social media and no doubt will be debated after the Court decides the case.
The numerous amicus briefs filed in the case reflect the debate and the wider implications of the case. For example, the brief filed by online service providers asks the Court to refine certain 4th Amendment doctrines to meet users’ expectations of privacy in their digital data:
Because the data that is transmitted can reveal a wealth of detail about people’s personal lives, however, users of digital technologies reasonably expect to retain significant privacy in that data, notwithstanding that technology companies may use or share the data in various ways to provide and improve their services for their customers. Fourth Amendment doctrine must adapt to this new reality. Although amici do not take a position on the outcome of this case, they believe the Court should refine the application of certain Fourth Amendment doctrines to ensure that the law realistically engages with Internet-based technologies and with people’s expectations of privacy in their digital data.
As the tech companies note, “[d]igital interconnectedness defines modern society.” They say that “the third-party doctrine and the content/non-content distinction should not operate to categorically foreclose Fourth Amendment protection; instead, Fourth Amendment law should favor a more flexible approach that assesses reasonable expectations of privacy in light of new and evolving technologies and the highly sensitive data they implicate.” If the Sixth Circuit is upheld, all of this “Big Data” will be subject to government searches without a warrant. For those who think bright lines are required for government officers conducting searches, such a flexible approach will seem inadequate.
Bright lines are possible in technology cases. As Justice Roberts famously said in Riley v. California in answer to law enforcement’s desire to search a suspect’s cell phone incident to arrest: Get a warrant. Why? Because:
Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life". The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.
We are entering a new age where a person’s every interaction with his or her surroundings will be collected, stored and used by some or many third party platform or application providers, knowingly or not, by the individual. To not use technology is not an option in our modern world, it is a necessity of life. Users may not even know in the future that they are engaging with technology. Sensors are being deployed in buildings, cities and other public and private spaces and indeed, governments themselves are mass collectors of data about people and how they use and interact within cities -- as I’ve noted before, smart cities are an exercise in utterly standardless data collection and disregard for individual privacy. Is none of this data to be protected by the 4th Amendment?
We should all understand that the Internet is just a bigger version of a cell phone and location history is just another very sensitive byte of our daily lives. Third party doctrine conventional wisdom aside, the Court should require a warrant whenever the government seeks to search online companies for records of any citizen’s use or interaction with any network, platform or application. The data at issue holds and reflects the very privacies of our digital lives and should be protected by the 4th Amendment.