Carpenter and 2011 in northwestern Ohio and southeastern Michigan

Carpenter v US involves an investigation into a series of armed robberies that took place between 2010 and 2011 in northwestern Ohio and southeastern Michigan at Radio Shack and T-Mobile stores. In 2011, police arrested four men in connection with the series of robberies and one of the suspects confessed to his crimes and gave FBI agents his cell phone number along with the numbers of the other participants. An Assistant United States Attorney submitted three applications to different magistrate judges to obtain “transactional records” of cellphone location data for each of the relevant phone numbers. The judges granted the FBI permission to access these records under Stored Communications Act, 18 U.S.C. 2703(d), which grants that the government may require the disclosure of certain telecommunication records without the need of a warrant by offering specific and articulable facts showing that there are reasonable grounds to believe the records sought “are relevant and material to an ongoing criminal investigation.” (Korobkin et al., 2016). The transactional records obtainable to the government under this act include date and time of calls and approximate locations where calls are dialed and ended based on their connection to cell towers or cell site information.The applications in Carpenter v US sought out records that included listed and unlisted numbers dialed or otherwise transmitted to and from the telephones, as well as cell site information for the telephones at call origination and at call termination for both incoming and outgoing calls. The orders granting the applications issued on May 2nd and June 7th, 2011 were directed to Metro PCS Carpenter’s cell phone provider, and to Sprint for the cell site information of Carpenter’s phone while roaming on Sprint’s cellular tower network. This is because Metro PCS did not have coverage in the Ohio area where one of the robberies took place and had a roaming agreement with Sprint.  Based on the cell site information about Carpenter’s location at the time of the robberies, the government charged him and other suspects of violating provisions of Title 18, United States Code, §1951.”, which prohibits actual or attempted robbery and extortion affecting interstate commerce. (18 U.S.C. § 1951). Timothy Carpenter moved to suppress the government’s cell-site evidence on the grounds that it violated the Fourth Amendment, arguing that the FBI needed a warrant based on probable cause to obtain the records. The district court denied the motion to suppress, and the Sixth Circuit affirmed.This case is important as to determine the scope of police power in regard to new technologies. The constitutional question at stake is whether the warrantless search and seizure of cell phone records revealing locations and movements of cellphone users violate the Fourth Amendment. The Fourth Amendment itself declares  that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (U.S. Const. Amend. IV). In the Fourth Amendment, there is an emphasis on individuals being entitled to privacy of what is deemed their “property,” to various extents. However, not only does a case such as Carpenter v US pose the question of whether warrantless seizures violate the Fourth Amendment, but it also invokes the notion of the third-party doctrine and leaves up for debate whether individuals who voluntarily give information to third parties can reasonably expect privacy of that information. Such parties include for instance cell phone companies, internet providers or banks. In this case, it brings to questions who owns one’s cellphone data, the individual or the company and subsequently who is entitled to rights of privacy over them.In previous cases, the Supreme Court has often ruled against petitioners like Carpenter. For instance, in Smith v Maryland the Court ruled in a 5-3 majority that the use of a pen register without warrant did not violate the Fourth Amendment. The majority opinion delivered by Justice Harry A. Blackmun advanced that individuals voluntarily and knowingly give their information to the phone company as a third party and therefore are not guaranteed Fourth Amendment protections. The Fourth Amendment protections are only relevant if the individual believes the government has infringed on their reasonable expectation of privacy. Since numbers recorded by a pen registry are used in the regular conduct of the phone company’s business and with individual’s knowledge, there is no reasonable expectation of privacy in this case. Similarly, in United States v Miller, the Court also upheld that the Fourth Amendment protections do not extend to information that is volunteered by the individual to an external party. In this case, when bank account records subpoenaed by the Bureau of Alcohol, Tobacco, and Firearms served as evidence for Mitch Miller’s unpaid tax conviction, he appealed alleging that his Fourth Amendment rights were violated. Although the United States Court of Appeals for the Fifth Circuit, ruled in his favor, the Supreme Court in a 6-3 opinion reversed the Fifth Circuit. Justice Lewis F. Powell affirmed that the documents subpoenaed were not Miller’s private documents but part of the bank’s business records, therefore violating no privacy rights.It is precisely rulings such as those of Smith, and Miller that have served as precedent for the rulings of the District Court and Sixth Circuit in Carpenter v US  and The Court has little constitutional basis to overturn their decisions. The government did not violate the Fourth Amendment because it did not seize or search neither the petitioner himself, his home or any papers in his possession. Also, the petitioner did not have any reasonable expectation of privacy. The data used as evidence was recorded and maintained by the phone carrier as a part of their business records and did not divulge or even record for that matter, any content of Carpenter’s conversations, merely routing data. Nevertheless, Timothy Carpenter willingly relinquished this information to his carrier, which can be provided to law enforcement if needed as stated through the carrier’s private policy. Furthermore, there is nothing that suggests that the Framers viewed information willingly and necessarily disclosed as part of business transactions as “property” as all the limitations of one’s privacy in the Fourth Amendment are purely spatial. Moreover, if there were to be any sort expectation of privacy in cell site location tracking it would be very limited and quasi-inapplicable in this case. The government had clear grounds to utilize the records through the Stored Communications Act as they were relevant to an ongoing criminal investigation. Finally, the Court must consider the serious ramifications of overturning this ruling. If the Court were to invalidate the third-party doctrine even in an implicit manner, this could have drastic consequences for the future supination of financial information vital to entities such as the IRS and cases of fraud or identity theft. This would halt not only the prosecution of those types of cases but also prevent state grand juries from issuing subpoenas of documents that are essential to their functioning. Yet, although it is with all the above that I would advise the Court to maintain the ruling in Carpenter v US, I do not believe the Court will uphold the ruling.While the arguments above address the question reasonable expectations of privacy under the third-party doctrine and underline the adverse consequences of overturning the ruling, they do not quite answer the question of the scope of police power regarding new technologies. Although it can be argued that landlines in Smith v Maryland were just as vital to individual’s everyday lives as cell phones are today, this comparison would be quite erroneous. cell phones are attached to most individuals at almost all of their waking moments and prior cases such as Smith and Miller, decided in the late 70’s could not foresee this. Furthermore, even the Stored Communication Act was passed in 1986, when cellphones were not such intricate parts of individual’s everyday lives. If we look at more recent cases such as Riley v California, The Court held unanimously that warrantless searches following arrests exist solely for the purpose of protecting law enforcement officers and preserving data. Chief Justice John G. Roberts, Jr articulated the majority opinion detailing that these two conditions were inapplicable to digital data because it could not be used against officers nor was the evidence hard to preserve. The Court likened cell phones to “minicomputers” with vast amounts of private information which distinguished them from traditionally searchable and sizable items. Although this goes against the third-party doctrine and established precedent, it does offer a solution of how to deal with this new and ever so present form of technology.In sum, while I still would argue the constitutionality of overturning the ruling, it is perhaps here less of a fundamental constitutional question but more so a question of how to apply the Constitution to a new and ever so growing technology, that obviously could not have been foreseen by the Framers or by previous Supreme Court Justices. It could be argued similarly to Riley v California and in a functionalist approach to the Constitution that phone records now hold much more sensitive and private information than they used to and should fall under the provision of the Fourth Amendment. I predict the Court will overturn the ruling in Carpenter v US.