In the United States, 77% of adults own smartphones. But how much do American smartphone users know about how their personal data gets from Phone A to Phone B? Fourth Amendment jurisprudence continually revolves around society’s expectations of privacy, yet smartphones constantly transmit user data to third parties like advertisers, businesses, and data providers.

In the coming month, the Supreme Court is slated to hear oral argument on Carpenter v. United States, which will establish whether, under the Fourth Amendment, the government can subpoena a phone company for over three months of a user’s locational data derived from data produced by the user’s call history. Some commenters believe that the Supreme Court will answer that question in two parts: (1) Was there a search? (2) If so, was it reasonable?. Smart phones work by transmitting data to and from cell phone towers, which allows users to make calls, send texts, and access the internet in most places. Providers keep logs of which phones connect to which towers. In Carpenter, the government utilized this data to place a robbery suspect in multiple locations of robberies at the time of the robberies.

The petitioner in Carpenter argues that the Fourth Amendment entitles them to a “sphere of individual privacy” based on society’s expectation of privacy regarding personal cell phone use. Petitioner will face difficulty overcoming the third-party doctrine—a gaping exception to Fourth Amendment protections. The third-party doctrine relies on the assumption that when a person hands some type of information over to a third party, even a party who the person expects will keep the information confidential, the person forfeits his or her expectation of privacy.

However, the third-party doctrine has always rested on a tenuous view of society’s expectation of privacy. In 1976, the Court held in U.S. v. Miller that people who use banks do not have an expectation of privacy, because they turn over their financial data to the bank. It reasoned that disclosing their financial data to a third-party, people cannot reasonably expect the third-party to keep it private.

One of Petitioner’s strongest arguments, which is supported by numerous briefs filed by amici well-versed in smart phone operations, is that because the data transmission happens automatically, the user does not consent to its release. But the facts of Carpenter likely weaken this argument. In Carpenter, the defendants actually did make calls and send texts, which left a log of defendants’ presence near robbery cites. Their phones were not simply on and transmitting—the defendants took an affirmative, voluntary step in making calls.

The Sixth Circuit asserted that average cellphone users know that the way their devices function releases a trail of location data because phones regularly interact with particular cellular towers. It is unclear whether the Supreme Court will agree. Carpenter will be a unique chance for the Supreme Court to reevaluate a longstanding doctrine of Fourth Amendment law, and signal the future of Fourth Amendment jurisprudence in an increasingly digital society.

Natalie Pike




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