But in recent years, serious changes have been brewing in the Court’s Fourth Amendment jurisprudence. Margot E. Kaminski teaches, researches, and writes on law and technology. Early wiretap case law notoriously found that tapping a person’s phone line did not constitute a search because it did not require physical trespass.9 In Katz v. United States,10 however, the Supreme Court overruled that wiretap case and found that “the Fourth Amendment protects people, not places.”11 Privacy protection can travel with a person into the public sphere.12 Under the Katz reasonable-expectation-of-privacy test, courts must ask (1) whether a person has shown a subjective expectation of privacy and (2) whether society is prepared to recognize that expectation of privacy as reasonable.13, Under the Katz test, the Supreme Court initially refused to find an expectation of privacy in either public location information14 or information voluntarily shared with companies.15 In United States v. Knotts,16 a case about using a beeper to remotely track a vehicle’s location, the Court found that a person does not have an expectation of privacy in her location information in public streets because she has “voluntarily conveyed” that information “to anyone who wanted to look.”17 The third-party doctrine similarly reasons that when a person voluntarily turns information over to a company such as a bank or a telecommunications company, she assumes the risk that it will be more widely shared, including with the government.18. The government doesn't need a warrant to get it.
Riley v. California, 134 S. Ct. 2473 (2014). Carpenter v. United States: Big Data Is Different. 89 Senior Articles Editor | Rachel Movius Bank records, the Court reasoned in United States v. Miller,19 are not sensitive information but “negotiable instruments.”20 Phone numbers dialed are treated the same way.21 Sharing information with a company only bolsters the argument that the information is not sensitive or private in nature because, the reasoning goes, a person would not knowingly assume the risk of further sharing if the information were in fact sensitive.
The Court similarly held in United States v. Miller, 425 U.S. 435 (1976), that bank customers do not have any Fourth Amendment interest in their bank records because all the information in those records has been voluntarily conveyed to the bank.
Only the few without cell phones could escape this tireless and absolute surveillance.
The central, narrow holding in Carpenter is that in the age of Big Data, detailed historic location information is now sensitive information.30 A person can have a reasonable expectation of privacy in it, despite having ventured through public places. United States (Decided June 22, 2018) The government needs a warrant before getting our cell phone location data. Senior Managing Editor | Andrew Hile Under the SCA, a disclosure order does not require a finding of probable cause, but rather authorizes the issuance of a disclosure order whenever the government “offers specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.”. The third-party doctrine rests on two related prongs of reasoning: that the information shared is not really sensitive (or private, or confidential) in nature, and that by sharing it a person assumes the risk it will be shared further. This infographic report explains. SCOTUS Rules Montana Funding Program Can’t Exclude Religious Schools, Investigatory Power of Congress Under McGrain v. Daugherty. Response by Margot E. Kaminski Geo. These two prongs of reasoning together obviate arguments for both a subjective and objective expectation of privacy under Katz. The majority of the Court found for Jones on a theory of physical trespass, as the government physically placed the tracker on the car. Recommended Citation Jones began the process of unraveling Knotts, and with it, in the tangible distance, the third-party doctrine. The Court established that if you hand information over to a third party voluntarily, then you can't expect privacy in it. Chief Justice Roberts emphasized that the Court’s decision is narrow. More generally, Carpenter’s reasoning that privacy protections travel with sensitive data—even when it is controlled by third parties49—could develop into a hook for more complex private sector data privacy regimes in the future. The Third Party Doctrine was the government's key in this case. The Court found that if information is sensitive, the fact that you have shared it (essentially nonvoluntarily as a condition of digital services) does not eliminate your expectation of privacy.32 This is a point that scholars33 and civil society34 have been making for years. 16-402, slip op. By cross-referencing the information in Carpenter’s call detail records with the location of cell sites operated by MetroPCS and Sprint, the government could identify the area in which Carpenter’s phone was located and could thereby deduce Carpenter’s location and movements at multiple points each day. In Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC, 590 U. S. ... Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, This was the most anticipated aspect of the case. 16-402, slip op. one thousand seven hundred and eighty nine. This is especially the case because drones and body cameras, unlike cell phones, do not risk running into any remaining aspects of the third-party doctrine.
https://concurringopinions.com/archives/2012/01/three-thoughts-on-u-s-v-jones.html, http://yalelawjournal.org/forum/tiny-constables-and-the-cost-of-surveillance-making-cents-out-of-united-states-v-jones, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3019294, https://www.eff.org/deeplinks/2012/12/deep-dive-updating-electronic-communications-privacy-act, http://www.uidaho.edu/-/media/UIdaho-Responsive/Files/law/law-review/articles/volume-51/51-3-kaminski-margot-e.ashx?la=en&hash=DB603C8F4078548393749EE6CDE6C5240A30A121, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2577944, https://digital.law.washington.edu/dspace-law/bitstream/handle/1773.1/1778/93WLR0421.pdf?sequence=1&isAllowed=y, https://www.gwlr.org/wp-content/uploads/2018/07/Calhoun-et-al.-Letter.pdf, https://harvardlawreview.org/2016/05/the-positive-law-model-of-the-fourth-amendment, http://www.hastingslawjournal.org/wp-content/uploads/Schwartz-67.1.pdf, https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2638&context=facpubs, https://www.uclalawreview.org/broken-promises-of-privacy-responding-to-the-surprising-failure-of-anonymization-2, https://pdfs.semanticscholar.org/dbe1/07ce415a8252009f764afa0a058693596c64.pdf, Interfering with the Watchman: OLC Disruption of the Statutory Whistleblower Process. __ (2018),[1] and declared a Fourth Amendment privacy right for cell phone location data. Her work has focused on privacy, speech, and online civil liberties, in addition to international intellectual property law and legal issues raised by AI and robotics.
Online Editor | Emma Liggett at 12 (U.S. June 22, 2018) (“A person does not surrender all Fourth Amendment protection by venturing into the public sphere.”).