The USA Supreme Court: the discussion of the right to privacy in the digital era


1. Case presentation.

In the case Carpenter x United States filed on July 2017, technology companies such as Facebook, Google, Apple, Microsoft, Twitter, Airbnb, Cisco, Dropbox, Mozilla, Snapchat and the telecommunications company Verizon, requested to take part in the case as amici curiae.

The original case, Carpenter x United States, deals with an FBI investigation of a robbery perpetrated by obtaining data on the location of the suspects’ cell phones, as well as information on the movement of these devices, obtained from the records of cell phone towers.

This article examines this case, currently being tried by the United States Supreme Court, which deals with the constitutional interpretation of the Fourth Amendment of the USA Constitution that deals with search and seizure procedures on private properties and of people, grounded on the reasonable cause of the existence of a crime, upon court order. Technology companies wish to extend this constitutional guarantee to the digital era, broadening the realm of protection of the right to privacy.

It is a constitutional debate on the review of the traditional constitutional interpretation of the Supreme Court, which differentiates the constitutional protection of communications and what it calls non-content (metadata). In the traditional interpretation by the Supreme Court, the Fourth Amendment does not apply if the information is voluntarily shared with third parties. Therefore, Telecommunications and Internet application companies should provide data/information of their respective users to police or criminal investigation authorities.

Technology companies such as Facebook, Google, Apple, Microsoft, Twitter, Airbnb, Cisco, Dropbox, Mozilla, Snapchat and the telecommunications company Verizon, have petitioned to be admitted to the case as amici curiae.

The companies are requesting the evolution of the constitutional interpretation to remove the third-party doctrine that distinguishes between communication content and non-content (meta data is data such as the location of cell phones), to expand the protection of the right to privacy in the digital era. They argue that digital technology users cannot avoid transmitting sensitive data to service providers, but they expect that such data will remain private. They also contend that the protection of the Fourth Amendment of the USA Constitution should include the non-content of digital data.

In sum, third parties such as telecommunications providers and Internet application providers that receive and transmit sensitive data must not be required to provide such personal data without a court order.

We will now further examine the constitutional debate on the right to privacy in the digital era.

2. The United States Supreme Court: Constitutional Issue in Focus

The decision by the USA Supreme Court that admitted the trial of the Carpenter vs. the United States case is based on government police investigations (namely, the FBI) to search and obtain the data on the location history of a private individual’s cell phone data, without a data search and seizure court order, grounded on the Stored Communication Act (SCA). Under this law, there is no need to show reasonable cause for a crime to seize data; all that is required is recordings/information that are relevant to the criminal investigation. Still, according to the United States Supreme Court: “As a result, the district court never made a probable cause finding before ordering Petitioner’s service provider to disclose month’s worth of Petitioner’s cell phone location records. A divided panel of Sixt Circuit held that there is no reasonable expectation of privacy in these location records, relying in large part on four-decade-old decisions of this Court.

The United States Supreme Court also proclaimed:

“The question presented is:
Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a mobile phone user over the course of 127 days is permitted by the Fourth Amendment”.

We will examine the decision of the United States Court of Appeals for the Sixth Circuit that is being questioned in the Supreme Court.

3. The decision of the United States Court of Appeals for the Sixth Circuit

The case Carpenter x United States was filed because the FBI requested three court orders for historical records/recordings of several cell phone companies for sixteen (16) different phone numbers, as well as the location of the originating and receiving cell phones, in a robbery investigation.

The FBI presented a map, based on the cell phone locations, to show the proximity of the suspect to the place where the robbery happened.

In their defense, the accused tried to throw out the evidence produced by the FBI from the location data of the cell phones, arguing that it violated the Fourth Amendment, as the data was seized without any warrant based on probable cause of the existence of a crime.

Judge Kethledge’s vote reads: “In Fourth Amendment cases the Supreme Court has long recognized a distinction between the content of a communication and the information necessary to convey it. Content, per this distinction, is protected under the Fourth Amendment, but routing information is not”.

Also, according to that Judge: “This case involves an asserted privacy interest in information related to personal communications. As to that kind of information, the federal courts have long recognized a core distinction: although the content of personal communications is private, the information necessary to get this communication from point A to point B is not”.

So, Justice Kethledge concluded that this same distinction between the content of communication and the information required to transport it applies to Internet communications. This is an excerpt from that decision:

“Today, the same distinction applies to internet communications. The Fourth Amendment protects the content of the modern-day letter, the email. (….). But courts have not (yes, at least), extended those protections to the internet analog to envelope markings, namely the metadata used to route internet communications, like sender and recipient addresses on an email, or IP addresses”.

Upon examining the information on the location of the cell phone, provided by the data from the towers, the decision affirms:

“Thus, the cell-site data – like mailing addresses, phone numbers, and IP addresses – are information that facilitate personal communications, rather than part of the content of those communications themselves. The government’s collection of business records containing these data, therefore, is not a search”.

In his dissenting vote, Justice Stranch stated:

“… I believe that the sheer quantity of sensitive information procured without a warrant, in this case, raises Fourth Amendment concerns of the type the Supreme Court and our circuit acknowledged. (…). Though I write to address those concerns, particularly the nature of the tests we apply in this rapidly changing area of technology, I find it unnecessary to reach a definite conclusion on the Fourth Amendment issue “.

In the part of his vote that deals with the interpretation of the Fourth Amendment of the USA Constitution, Justice Stranch states:

“At issue here is not whether the cell-site location information (CSLI) for Carpenter and Sanders could have been obtained under the Stored Communication Act (SCA). The question is whether it should have been sought through provisions of the SCA directing the government to obtain a warrant with a probable cause showing, 18 U.S.C. §2703 (c) (1) (A), or a court order based on the specified ‘reasonable grounds (,), id §§ 2703 (c) (1), (B), (D). This leads us to the requirements of the Fourth Amendment.
Fourth Amendment law was complicated at the time of paper correspondence and land phone lines. The addition of cellular (not to mention internet) communication has left courts struggling to determine if (and how) existing tests apply or whether new tests should be framed. I am inclined to favor the latter approach for several reasons, particularly one suggested by Justice Sottomaior: ” (It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks ….”.

Another interesting issue in Justice Stranch’s vote is the distinction between information obtained through GPS tracking and information on the location of a cell phone device through the data of the telephone towers, for the constitutional interpretation of the Fourth Amendment to the American Constitution.

According to him:

“First, the distinction between GPS tracking and CSLI acquisition. CSLI does appear to provide significantly less precise information about a person’s whereabouts than GPS and, consequently, I agree that a person’s privacy interest in the CSLI his or her cell phone generates may indeed be lesser. (…). GPS monitoring generates a precise, comprehensive record of person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations, … ‘For older phones, the accuracy of the location information depends on the density of the tower network, but new smart phones, which are equipped with a GPS device, allow for more precise tracking.

Justice Stranch concludes that a court order is required to obtain information on the location of a person through the use of their cell phone data. He also states the need for limits to the amounts of personal data, over a given period of time. Finally, he voted for the constitutional interpretation of the Fourth Amendment to include the context of new communication technologies.

4. The Amici Curiae brief: Apple, Airbnb, Cisco, Dropbox, Facebook, Google, Microsoft, Mozilla, Snapchat, Twitter, Verizon

The technology companies mentioned above, along with Verizon, a telecommunications company, filed an amici curiae brief in the Carpenter x United States case.

This is their narrative: when the United States Congress passed the Stored Communications Act (SCA) in 1986, not many people used the Internet, almost no one had a personal computer, and very few people used mobile phone services.

However, the current scenario is different, due to the mass reach of the Internet and smartphones. The brief reads: “Transmitting personal data to the companies that provide digital products and services is an unavoidable condition of using technologies that people find beneficial and useful, and forgoing the use of those technologies for many is not an option”.

Given these new technologies, the companies sustain that the constitutional interpretation of the Fourth Amendment of the American Constitution must be adjusted to the changes to the reality of the digital era.

The amici curiae brief claims:

“Rigid rules such as the third-party doctrine and the content/non-content distinction make little sense in the context of digital technologies and should yield to a more nuanced understanding of reasonable expectations of privacy, including consideration of the sensitivity of the data and the circumstances under which such data is collected by or disclosed to third parties as part of people’s participation in today digital word”.

The technology companies state that their operations involve the transmission of highly personal information through their networks, including metadata. This data, even though it is the content of the private communication itself, reveal details of people’s private life.

They sustain the following theory of protection to the right to privacy in the digital era, grounded on the interpretation of the Fourth Amendment:

“Fourth Amendment doctrine must adapt to this new reality. Although amici do not take a position on the outcome of this case, they believe the Court should refine the application of certain Fourth Amendment doctrines to ensure that the law realistically engages with Internet-based technologies and with people’s expectations of privacy in their digital data. Doing so would reflect this court’s consistent recognition that Fourth Amendment protections, governed as they are by reasonable expectations of privacy, must respond to changes in technology that implicate privacy. Indeed, in declining to extend the search-incident-to-arrest exception to searches of cell phone in Riley v. California, 134 S. Ct 2472 (2014), this Court has already signaled that digital information deserves special consideration, largely because Internet-connected devices such as smartphones, ‘are not just another technological convenience, but are necessary to participate in the modern world, and hold for many Americans ‘the privacies of life.

According to the technology and telecommunications companies, in the analogical era, data transmission to a third party was necessarily a voluntary conduct that did not depend on the protection of the Fourth Amendment.

However, the situation in the digital era is different. Thus, no constitutional doctrine must presume that consumers assume the risk of surveillance by the government or public authorities, without guarantees, simply due to the use of modern technologies. Therefore, certain information transmitted digitally traditionally classified as non-content must not be excluded from the protection of the Fourth Amendment, as they reveal the intimate details of a person’s life.

They also cite that the incompatibility of the third-party doctrine in light of the expectation of privacy is even greater in the case of residential automation applications jointly with smart-home technology that connects private spaces, including by identifying if people are home or not by measuring the internal temperature of the environment.

Thus, the amici curiae brief states the need to review the traditional constitutional interpretation on the Fourth Amendment to the USA Constitution:

“Rather than adhere to rigid Fourth Amendment on/off switches developed in the analog context, courts should take a more flexible approach that realistically reflects the privacy people expect in today’s digital environment. Consistent with the general reasonable-expectation-of-privacy inquiry, courts should focus on the sensitivity of the data at issue and the circumstances of its transmission to third parties. That approach would better reflect the realities of today digital technologies and accommodate the technologies of the future.”

The amici curiae brief concludes:

“The Court should afford strong Fourth Amendment protection to digital data and reject the mechanical application of the third-party doctrine and content/non-content distinction in favor of a more flexible analysis that takes account of people’s reasonable expectations of privacy in the digital era.”

As for the reflections of the interpretation of the Fourth Amendment to telecommunications companies (the brief is also signed by Verizon), the brief reads:

“Last year, law enforcement obtained approximately 40,000 warrants or court orders to require Verizon to provide such cell-site location information to aid them in identifying the location of a device and, presumably, its user. Verizon believes that such demands present important questions about the proper balance between security and privacy. Verizon is committed to maintaining strong and meaningful privacy protections for its customers. Verizon thus carefully reviews law-enforcement requests for user data and publishes biannual transparency reports to disclose how it has responded to those requests”.

In sum, this case being tried by the United States Supreme Court is significant concerning the protection of the right to privacy in the digital era, which has serious repercussions in the technology and telecommunications industry.

There is a high demand for a new constitutional interpretation due to the changes caused by the new digital technologies, to protect the fundamental right to privacy of the users of Internet applications.

Artigo publicado no site jurídico Migalhas –  Seção Migalhas Internacional em 01/09/2017,MI264665,11049-The+USA+Supreme+Court+the+discussion+of+the+right+to+privacy+in+the

Ericson M. Scorsim

Lawyer and Consultant in Communication Law. PhD in Law from USP. Author of the Ebooks Collection on Communication Law with a focus on topics on technologies, internet, telecommunications and media.