Our personal information is constantly being collected by third parties without our realization. Every time we use one of our devices, we expose personal details and information to collection by any number of entities that use the data for various purposes. Privacy is clearly on the decline as the use of one device or another becomes a standard and unavoidable part of life. An individual cannot be part of modern society absent a cell phone and/or computer. These facts all have serious implications for criminal defendants.
In 1979, the United States Supreme Court decided Smith v. Maryland. There the Court discussed what has become known as the “Third Party Doctrine”, which provides that individuals do not have a reasonable expectation of privacy in information voluntarily given to a third party (e.g., telephone carrier or bank). This information is then available to Government agencies, including law enforcement agencies.
The Court is now scheduled to hear a case that asks what the police and prosecutors can legitimately do with personal data that is collected from third parties. Carpenter v. United States could greatly alter Fourth Amendment principles and procedures as they must be applied in cases involving data resulting from the use of cellphones, computers, and similar devices.The defendant was involved in a series of robberies over a two-year period. Law enforcement obtained cell site location information arising from his use of a cell phone. The police did not obtain a search warrant, but a judge did execute an Order under the Stored Communications Act, which sets the standard for a search at reasonable suspicion, as opposed to probable cause. The cell site information placed him near the crime scenes during the timer periods relevant to the robberies.
A major issue here arises from the fact that Smith was decided approximately 30 years ago, and our modern-day cellphones and computers – things that we all use extensively today – were not conceived of at that time. Yet, a broad application of Smith could erase Fourth Amendment protections for information generated by our use of what have become commonplace devices. by opening up personal data that has been collected by third parties.
In Riley v. California, decided in 2014, the Court ruled that the police need a warrant to search a smartphone recovered from someone who has been arrested. This was based on, among other things, the pervasiveness of cell phones in modern life and their power to store large amounts of data. Riley’s holding was also based on the First Amendment and Freedom of speech issues related to sell phone usage. Thus, the Court has recognized the central role that cellphones have come to play in modern life.
But what happens when the data is not in the defendant’s cell phone, personal computer or iPad? These devices are invariably connected in some way to a third party. Indeed, it is probably impossible to use them without some transfer of personal data to a third party. Further, the user does not even know this is happening since the data transfer is automatic, and probably does not even know what data is being transferred. But any number of third parties have a considerable store of information about each of us because of our devices. Carpenter presents the Court with the opportunity to (re)structure basic Fourth Amendment protections in light of our use of electronic devices which, in turn, lies at the heart of almost every aspect of modern life. This could easily one of the most far-reaching Fourth Amendment decisions that the Court has decided in recent memory.
James S. Friedman is a criminal defense attorney based in New Brunswick, New Jersey, who handles criminal cases in the Superior Court of New Jersey, the New York State criminal courts located in Manhattan and Brooklyn, all federal courts in New Jersey and New York City, and all New Jersey Municipal Courts.