The “Third Party” Catch-22

By: Ifrah Law

As the Department of Justice has been doubling down on law enforcement overreach, the Supreme Court has just decided to hear a case that may limit the use of a common tool that law enforcement uses to infringe upon the privacy rights of innocent people.

The case, Carpenter v. United States, arises out of a series of armed robberies in Michigan in 2010 and 2011.  As part of the investigation, police requested access to more than five months’ worth of cell phone location data for several suspects, including Timothy Carpenter.  This data allowed police to know the rough location of each suspect every time he used his phone during that period (and a more searching order could have provided constant, and more exact, location tracking).  Had the police wanted to get this information from their targets directly, they would have been subject to stringent warrant requirements under the Fourth Amendment to the Constitution.  A warrant must be narrow and can only be issued if a neutral judge finds, based upon a sworn statement under oath, that there is probable cause to believe that the warrant will turn up evidence of a crime.

However, because the suspects’ cell phone location data was held by third-party cell phone carriers, it is not protected by the Fourth Amendment under a legal principle called the “third party doctrine.”  This doctrine was created in 1979 in a case allowing for police to obtain a pen register—that is, a list of all the telephone numbers called from a given line—without a warrant.  In that case, the Court found that a person cannot have a “reasonable expectation of privacy” in information that was in possession of a third party.

This same reasoning has been extended to a shocking array of highly personal information that is entrusted to third parties—banking and financial records, emails, internet usage data, and even health records can all be excluded from constitutional protection under the third-party doctrine.  In virtually all of these cases, Congress has taken steps to offer some degree of protection to information that can be extremely personal, but these measures rarely, if ever, offer the same protection against law enforcement abuse as the Fourth Amendment’s warrant requirement.  For example, the cell site data at issue in Carpenter was obtained under the Stored Communications Act (“SCA”), which allows law enforcement to access information so long as it can show “reasonable grounds”—not necessarily under oath—“to believe that” the records sought “are relevant and material to an ongoing criminal investigation.”  This standard does not even require that the records have anything to do with a suspect—officers may seek the records of an innocent bystander or even a victim under this standard.

Part of the reason why this makes so little sense is that society has changed a great deal since 1979.  Back then, the phone company may know whom you had been calling, but they couldn’t track you once you hung up the phone.  The bank might have your deposit and withdrawal records, but it couldn’t track all of the purchases you made with your cash.

In the modern world, this has changed.  A credit card company can know almost everything you consume.  Your phone can track your location from moment to moment, and your social media accounts may record most of your thoughts over the course of a day.  And when you add in email servers, Fitbits, smart appliances, and various apps that organize your life, the third party doctrine has the potential to do away with any notion of privacy at all.  There simply no longer is a way to keep your personal information out of the hands of third parties without opting out of society entirely.

That is why it is so heartening that the Supreme Court has accepted the Carpenter case.  We can only help that the Court will recognize the changes that have occurred over the past four decades and rule that the Fourth Amendment protects our sensitive personal information even when it has been entrusted to third parties.  Until then, though, I would be careful where you use your cell phone, because you never know who may be looking over your shoulder just because they’re curious.