The U.S. Supreme Court recently issued a decision in Carpenter v. United States, an important Fourth Amendment case that was eagerly awaited by many. The decision was widely cheered as a breakthrough in Fourth Amendment jurisprudence — hailed as a “landmark privacy case” and a “major victory for digital privacy.” In the NY Times, Adam Liptak referred to Carpenter as a “major statement on privacy in the digital age.”
Although I agree with the outcome of the decision, I ultimately find it to be disappointing. True, the Supreme Court finally took a step forward to bring the Fourth Amendment more in line with the digital age. But this was only a step in the year 2018, when the Court should have walked more than a mile.
Despite the fact that the various opinions in Carpenter total 119 pages, Carpenter only resolves a narrow issue and leaves many open questions. When something is the length of a Tolstoy novel, the plot should advance quite a lot more. The basic holding of the case is that the Fourth Amendment applies when the government “accesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements.” But a lot more was at stake in the case. This was the prime opportunity of the Court to overrule the Third Party Doctrine, under which the Court has held that that there is no reasonable expectation in privacy for information known or exposed to third parties. The Third Party Doctrine was forged in the 1970s in cases involving bank and phone records. In United States v. Miller, 425 U.S. 435 (1976), the Court held that there is no reasonable expectation of privacy in financial records maintained by one’s bank because “the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities.” In Smith v. Maryland, 442 U.S. 735 (1979), the Court concluded that there was no reasonable expectation of privacy when the government obtained a list of phone numbers a person dialed from the phone company because people “know that they must convey numerical information to the phone company” and cannot “harbor any general expectation that the numbers they dial will remain secret.”
As I argued in an earlier post about Carpenter, the Third Party Doctrine is deeply flawed and eviscerates Fourth Amendment protection in today’s digital age where so much of our information is in the hands of third parties. Carpenter would have been the ideal case to get rid of the Third Party Doctrine. Instead, the Supreme Court did what it has often done in recent years — tiptoe weakly like a mouse, nibbling around the edges of issues rather than directly resolving them. Rather than overrule Smith and Miller, the Carpenter Court just stated that these cases don’t apply to cell-site location records: “We decline to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. ” This is a partial victory, as the Third Party Doctrine finally has a stopping point, but there are an endless series of situations involving the Third Party Doctrine, and the Court has provided scant guidance about when the Third Party Doctrine will apply.