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<\/p>\nBy:\u00a0Catherine Schroeder<\/p>\n
<\/p>\n
With society\u2019s increasing dependency on ever-changing technology, particularly cell phones, the need to protect individuals\u2019 privacy in criminal investigations is paramount.[1]<\/a> Cell phone users\u00a0 no longer share personal information with their cell phone carriers but with apps and search engines.[2]<\/a> Furthermore, cell phone carriers are adding smaller cell sites, in addition to macro cell towers, which allows cell phone carriers to determine a cell phone\u2019s location within smaller and more targeted boundaries.[3]<\/a> While this cell phone technology is evolving at a fast pace, the law is slow to adapt.[4]<\/a> The judiciary and legislatures, both state and federal, must anticipate emerging technology in order to fully protect individuals\u2019 privacy.[5]<\/a><\/p>\n The Supreme Court\u2019s recent decision in Carpenter v. United States<\/em> may give insight into how the Court will handle digital privacy in the near future.[6]<\/a> In a narrow ruling, the majority held that law enforcement\u2019s acquisition of over 127 days of cell-site location information (CSLI) constituted a search under the Fourth Amendment and required a warrant.[7]<\/a> The majority reasoned that tracking a cell phone\u2019s location for that length of time gives a complete record of an individual\u2019s whereabouts.[8]<\/a> Similar to tracking GPS information from a car, tracking a cell phone\u2019s location reveals a person\u2019s \u201cfamilial, political, professional, religious, and sexual associations.\u201d[9]<\/a> The intimate and exhaustive nature of the information led the Court to conclude that the warrantless search was unconstitutional.[10]<\/a><\/p>\n Proponents of increased protection of privacy in the digital era hailed this decision as a win.[11]<\/a> They argue because the third-party was developed in the 1960s and \u201870s, the doctrine does not take into account the precision and invasiveness of information available today.[12]<\/a> The majority in Carpenter <\/em>addressed these concerns and declined to extend the third-party doctrine, citing the nature of the data collection and recognizing that the necessity of cell phones in modern life renders the voluntary exposure rationale of the third-party doctrine mute in the particular circumstance.[13]<\/a> Despite its narrow ruling, proponents of digital privacy have been hopeful the rationale may be applied to other information held by third parties, such as search history, emails, and more.[14]<\/a> Nathan Wessler, ACLU attorney who argued before the Court on Carpenter<\/em>, stated this decision \u201cprovides a path forward for safeguarding other sensitive digital information in future cases\u2013from\u2026smart-home appliances\u2026[to] technology that is yet to be invented.\u201d[15]<\/a><\/p>\n However, after the recent confirmation of Justice Brett Kavanaugh, the dissent\u2019s approach, which considered the majority\u2019s ruling an \u201cundue restriction\u201d on law enforcement, may be the Court\u2019s future approach to digital privacy with cellphones.[16]<\/a> During Justice Kavanaugh\u2019s confirmation process, proponents of increased digital privacy criticized several of his previous rulings .[17]<\/a> In Klayman v. Obama, <\/em>Justice Kavanaugh wrote a concurrence that upheld the constitutionality of the National Security Agency\u2019s (NSA) bulk telephone metadata program from the Bush Administration.[18]<\/a> The NSA would collect information about numbers dialed and the length of phone calls without a warrant and store this information.[19]<\/a> The FBI could look through this data with permission from the Foreign Intelligence Surveillance Act court.[20]<\/a> In an unprompted concurrence, where the majority did not even write a full opinion, Justice Kavanaugh wrote that this constituted a \u201cspecial need\u201d that outweighs the intrusion on individual liberty.[21]<\/a><\/p>\n For proponents of increased digital privacy, the more concerning decision by Justice Kavanaugh is his joining of the dissent for the D.C. Circuit Court of Appeals in United States v. Jones<\/em>.[22]<\/a> Justice Kavanaugh and the dissent found that Jones\u2019s reasonable expectation of privacy in his movements on public highways was nonexistent, despite the month long GPS tracking.[23]<\/a> This is in stark contrast to the majority ruling in Carpenter <\/em>that relied on the Supreme Court\u2019s concurrence in Jones<\/em>, which opposed Justice Kavanaugh\u2019s reasoning.<\/em>[24]<\/a> The Jones <\/em>majority used a property-based rationale to determine the tracking was an unconstitutional search, but the concurrence in Jones <\/em>foresaw longer term GPS monitoring, possibly using cell phone data, as \u201cimpinging on expectations of privacy.\u201d[25]<\/a> In Justice Kavanaugh\u2019s Senate Judiciary Committee questionnaire, he stated he was only applying a property-based rationale as later implemented by the Supreme Court majority;[26]<\/a> however, the dissent he joined did clearly state that Jones had no expectation of privacy.[27]<\/a> Justice Kavanaugh\u2019s opinion \u00a0is not likely to change if the facts in front of him included a month-long surveillance in Jones <\/em>to a little over two months in Carpenter<\/em>.[28]<\/a><\/p>\n It is unclear how Justice Kavanaugh will rule on issues of digital privacy. As an appellate judge, he was bound by precedent in interpreting the third-party doctrine.[29]<\/a> However, since the Carpenter <\/em>decision was a narrow ruling to its specific facts, it is more likely that Justice Kavanaugh will move the Court to the direction of the dissent in Carpenter. <\/em>Proponents of increased digital privacy may have been too hasty with their celebrations.<\/p>\n <\/p>\n [1]<\/a> See<\/em> Anne Pfeifle, Alexa, What Should We Do About Privacy? Protecting Privacy for Users of Voice-activated devices?<\/em>, 93 Wash. L. Rev. 421, 424 (2018).<\/p>\n [2]<\/a> See <\/em>Craig Silliman, Technology and Shifting Privacy Expectations (Perspective)<\/em>, Bloomberg Law: Big Law Business (Oct. 7, 2016), https:\/\/biglawbusiness.com\/technology-and-shifting-privacy-expectations-perspective\/.<\/p>\n [3]<\/a> See id. <\/em><\/p>\n [4]<\/a> See <\/em>Pfeifle, supra <\/em>note 1, at 458.<\/p>\n [5]<\/a> See <\/em>Pfeifle, supra<\/em> note 1, at 457.<\/p>\n [6]<\/a> See <\/em>Carpenter v. United States, <\/em>138 S. Ct. 2206, 2213 (2018).<\/p>\n [7]<\/a> See id<\/em>. at 2217.<\/p>\n [8]<\/a> See id.<\/em><\/p>\n [9]<\/a> See id. <\/em>(quoting United States v. Jones, 565 U.S. 400, 415 (2012)).<\/p>\n [10]<\/a> See id. <\/em>at 2223.<\/p>\n [11]<\/a> See <\/em>Louise Matsakis, The Supreme Court Just Greatly Strengthened Digital Privacy<\/em>, Wired (June 22, 2018, 12:26 PM), https:\/\/www.wired.com\/story\/carpenter-v-united-states-supreme-court-digital-privacy\/.<\/p>\n [12]<\/a> Editorial Board, The Supreme Court\u2019s Privacy Case Shows Congress Needs to Draw New Lines, <\/em>Washington Post (Dec. 10, 2017), https:\/\/www.washingtonpost.com\/opinions\/the-supreme-courts-privacy-case-shows-congress-needs-to-draw-new-lines\/2017\/12\/10\/c4d85c12-d940-11e7-b1a8-62589434a581_story.html?utm_term=.0de888bbcb05.<\/p>\n [13]<\/a> See Carpenter<\/em>, 138 S. Ct. at 2220.<\/p>\n [14]<\/a> See <\/em>Matsakis, supra <\/em>note 11.<\/p>\n [15]<\/a> Id. \u00a0<\/em><\/p>\n [16]<\/a> See <\/em>Carpenter, 138 S. Ct. at 2221; See <\/em>Michael Macleod Ball, Kavanaugh\u2019s Views on Privacy, Fourth Amendment Should Make Republicans Think Twice, <\/em>The Hill (Sept. 3, 2018, 4:00 PM EDT), https:\/\/thehill.com\/opinion\/judiciary\/404751-brett-kavanaughs-views-in-privacy-and-the-fourth-amendment-should-make (\u201cKavanaugh\u2019s nomination…raises troubling concerns about our right to be free of unwarranted government oversight in an age of expanding capacity to engage in surveillance without our knowledge.\u201d).<\/p>\n [17]<\/a> Ball, supra <\/em>note 16.<\/p>\n [18]<\/a> Matthew Feeney, Kavanaugh, Klayman, and the Fourth Amendment, <\/em>Cato Institute (July 13, 2018, 1:19 PM), https:\/\/www.cato.org\/blog\/kavanaugh-klayman-fourth-amendment.<\/p>\n [19]<\/a> See id. <\/em><\/p>\n [20]<\/a> Ball, supra <\/em>note 16.<\/p>\n [21]<\/a> Klayman v. Obama, 805 F.3d 1148, 1149 (D.C. Cir. 2015).<\/p>\n [22]<\/a> United States v. Jones, 625 F.3d 766, 767\u201368 (D.C. Cir. 2010).<\/p>\n [23]<\/a> See <\/em>Jones, 625 F.3d at 769.<\/p>\n [24]<\/a> See <\/em>Carpenter, 138 S. Ct. at 2215.<\/p>\n [25]<\/a> United States v. Jones, 565 U.S. 400, 415, 430 (2012).<\/p>\n [26]<\/a> Ball, supra <\/em>note 16.<\/p>\n [27]<\/a> See <\/em>Jones, 625 F.3d at 769.<\/p>\n [28]<\/a> See <\/em>Carpenter, 138 S. Ct. at 2213; See<\/em> Jones, 565 U.S. at 768.<\/p>\n