X
May 2018 Cover Story: Data Privacy and the Law - Protecting the Fourth Amendment After Carpenter in the Digital Age: What Gadget Next?

by Eunice Park

A t the November 2017 oral arguments in the case of Carpenter v. United States, Justice Sonia Sotomayor commented that many individuals even carry their cell phones into their beds and public restrooms: “It’s an appendage now for some people.”1 The Supreme Court will rule by June in the potentially far-reaching case, which raises the issue of whether cell site location data can be obtained without a warrant.2 Ostensibly, Carpenter is only about geographic cell site location information. However, the constant evolution and forward march of technology lead one to wonder, what privacy issue awaits around the next corner? What technological innovation will pose yet another Fourth Amendment challenge? Indeed, what if the cell phone literally becomes an appendage? Americans already are affixed with Bluetooth devices,3 prosthetics featuring microprocessors,4 and implantable microchips.5 Is it a stretch to imagine that in the not-so-distant future, the distinction between man and machine might become blurred, like a cyborg-controlled dystopia?

Background: Is It Property or Privacy?

If Carpenter lines up with previous cases in which technology inspired Fourth Amendment challenges, the Supreme Court will find some way to rule in favor of protecting personal information, even if a tension exists with the Court’s own past approaches as to how to get there.

For example, in United States v. Jones, the Supreme Court held that a Global Positioning System (GPS) attached to the undercarriage of a vehicle to track its movements was a search requiring a warrant.6 In his 2012 majority opinion, Justice Antonin Scalia reasoned that attaching the tracking device to the vehicle was a physical trespass, and whether the defendant had a reasonable expectation of privacy did not need to be addressed since the reasonable expectation of privacy test added to, but did not substitute for, the common law trespassory test.7 The end result, nonetheless, is that a warrant is now required if the government wants to attach a GPS to your vehicle.

In contrast to Jones, in which the privacy issue was viewed as secondary to the property rationale, Riley v. California dwelled on the immense privacy implications that warrantless cell phone searches would pose.8 In holding a warrant is required to search a cell phone, even in a search incident to arrest, Chief Justice John Roberts explained, “Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person” because of “their immense storage capacity.”9 The answer “to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant.”10 While the rationale that a cell phone has unique quantitative and qualitative properties seems almost simplistic now, the decision was rendered just in 2014, resolving the then-tenacious circuit split as to whether or not a cell phone was a traditional container.11 The emphasis on privacy represented a return to the reasonable expectation of privacy test articulated by Justice Potter Stewart in Katz v. United States.12 In so doing, the Court also “[took] clear aim at the third-party rule—that ‘non-content’ records like call logs, location data, and other metadata held by third parties can be collected by the government without a warrant.”13

The Technological Frontier: What Next?

Whether Justice Neil Gorsuch, Scalia’s replacement, will adhere to Scalia’s originalist model in resolving Fourth Amendment search issues, or adopts a pragmatist approach that encompasses a reasonable expectation of privacy, remains to be seen.14 Either way, the Court’s holding in Carpenter and how it arrives at it will have significant repercussions for lower courts trying to address the next Fourth Amendment technology-based challenges.

One immediate challenge is likely to be cell-site simulators. One example is the StingRay phone tracker:15

[The StingRay] enables law enforcement to pinpoint the location of a cellphone more precisely than a phone company can when triangulating a signal between cell towers or using a phone’s GPS function. Civil liberties advocates say the StingRay, by providing someone’s location to police without court approval, is a violation of an individual’s Fourth Amendment right not to be unreasonably searched.16

Some courts have held the use of such devices to require a warrant.17 The D.C. Court of Appeals, for example, expressed its concern that the simulator gives the government precise real-time location data that private actors do not have, without the need to visually track a suspect, based on exploiting vulnerabilities in a device that people feel obligated to carry with them at all times.18

While the location data obtained from cell-site towers and cell-site simulators is similar to the location data obtained from a GPS, cell site cases defy a strict trespassory rationale since no physical device is being affixed to personal property. The Jones court anticipated this scenario. “Situations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.”19 However, a decision in Carpenter that expounds on the expectation of privacy in location data will be positioned to encompass not only the cell-site records from cell phone towers that Carpenter implicates, but also recent technologies, such as the StingRay, and technologies around the corner in cases yet to materialize. Such a decision may enjoy longevity, with applicability to technologies not yet on the proverbial radar.

As for technologies yet to emerge, science fiction abounds with prognostications of a cyborg-controlled apocalypse. But is it really sci-fi? It is not hard to imagine that some of these technologies may become more commonplace, and may include highly personal information that could be grabbed by a digital gadget. Microprocessors in prosthetics respond to sensors located over the socket of the limb and are able to adjust the movement and position of the prosthesis in conjunction with a residual limb.20 An antenna implanted in a color-blind artist’s head allows him to “see” light in wavelengths.21 Our cell phones commonly have health apps that monitor our activity, sleep, mindfulness, and nutrition.22 Pets are micro-chipped.23 Would a Carpenter ruling that obtaining geographic cell site location data requires a warrant encompass a “chipped” human?

Last July, a Wisconsin technology firm began offering employees microchip implants that can be used to scan into the building and purchase food at work.24 The chip uses Radio-Frequency Identification (RFID), and the CEO, Todd Westby, foresees “the use of RFID technology to drive everything from making purchases in our office break room market, opening doors, use of copy machines, logging into our office computer, unlocking phones, sharing business cards, storing medical/health information, and used as payment at other RFID terminals. Eventually,” says Westby, “this technology will become standardized allowing you to use this as your passport, public transit, all purchasing opportunities, etc.”25 Currently, there is no GPS tracking, says Westby.26

Employees who enjoy the convenience of hovering their hand in front of a digital reader at checkout to buy the chips to satisfy their afternoon snack attack, or in front of a lock instead of fumbling for and swiping a key card, may represent a younger generation that readily embraces the use of technology in ways that others might consider unconventional or even nightmarish. Very possibly, the “reasonable expectation of privacy” paradigm articulated in Katz is a shifting one, as entire generations are growing up accustomed to sharing their private lives on social media, with an abundant and ever-growing choice of platforms for disclosing and discussing one’s whereabouts, activities, and thoughts. In the meantime, we can expect technological innovations to continue to blur the distinction between man and machine, and raise new challenges for the Fourth Amendment.

Conclusion

Whether the Carpenter decision invokes the third-party doctrine, a trespassory rationale, or some other reasoning, it is hoped that the Supreme Court will come up with a standard that is flexible enough to accommodate a constantly evolving landscape. Thus far, technology’s innovations have been outpacing the jurisprudence, necessitating new decisions and rationales to address devices as they arise and the Fourth Amendment challenges they introduce. Already the reasoning in the recent Riley decision rejecting the cell-phone-as-container analogy seems like an adage. How the Supreme Court resolves Carpenter this spring will be interesting, not only for its impact on law enforcement’s access to cell phone location information, but because of its potential impact on technologies that have not yet arisen, or new uses of existing technologies. The decision will affect a demographic that may be shifting in its privacy expectations, and for which the cell phone, and other digital devices, might figuratively, or even literally, be an appendage.

ENDNOTES

  1. Greg Stohr, Supreme Court Justices Hint at More Digital-Privacy Protections, Bloomberg News (Nov. 29, 2017), https://www.bloomberg.com/news/articles/2017-11-29/supreme-court-justices-hint-at-new-digital-privacy-protections.
  2. Id.
  3. Bluetooth, https://www.bluetooth.com/about-us (last visited Mar. 13, 2018).
  4. See, e.g., Ed Oswald, Here’s 7 prosthetic limbs that’re so amazing that they’re almost better than the real thing, Digital Trends (Jul. 17, 2016), https://www.digitaltrends.com/cool-tech/best-prosthetic-limbs/.
  5. Associated Press, FDA Approves Computer Chip for Humans, NBC News (Oct. 13, 2004), http://www.nbcnews.com/id/6237364/ns/health-health_care/t/fda-approves-computer-chip-humans/.
  6. 565 U.S. 400 (2012).
  7. Id. at 406-08.
  8. Portions of this article are adapted from Eunice Park, The Elephant in the Room: What Is a “Nonroutine” Border Search, Anyway? Digital Device Searches Post-Riley, 44:3 Hastings Const. L.Q. 277 (2017).
  9. Riley v. California, 134 S.Ct. 2473, 2489 (2014).
  10. Id. at 2495.
  11. Portions of this article are adapted from Eunice Park, Traffic Ticket Reasonable, Cell Phone Search Not: Applying the Search-Incident-to-Arrest Exception to the Cell Phone as “Hybrid,” 60:2 Drake L. Rev. 429 (2012).
  12. 389 U.S. 347 (1967).
  13. Marc Rotenberg & Alan Butler, Symposium: In Riley v. California, a Unanimous Supreme Court Sets Out Fourth Amendment for Digital Age, Scotusblog (Jun. 26, 2014), http://www.scotusblog.com/2014/06/symposium-in-riley-v-california-a-unanimous-supreme-court-sets-out-fourth-amendment-for-digital-age/. See also Park, supra note 11, at 460.
  14. See, e.g., Lawrence Rosenthal, The Court After Scalia: Fourth Amendment Jurisprudence at a Crossroads, Scotusblog (Sept. 9, 2016), http://www.scotusblog.com/2016/09/the-court-after-scalia-fourth-amendment-jurisprudence-at-a-crossroads/; Mark Joseph Stern, Neil Gorsuch’s Independent Streak, Slate (Nov. 30, 2017), http://www.slate.com/articles/news_and_politics/jurisprudence/2017/11/in_carpenter_v_united_states_neil_gorsuch_showed_his_independent_streak.html.
  15. See Stingray Tracking Devices: Who’s Got Them?, ACLU, https://www.aclu.org/issues/privacy-technology/surveillance-technologies/stingray-tracking-devices-whos-got-them (last visited Feb. 26, 2018).
  16. Tom Jackman, Police Use of “StingRay” Cellphone Tracker Requires Search Warrant, Appeals Court Rules, Washington Post (Sept. 21, 2017), https://www.washingtonpost.com/news/true-crime/wp/2017/09/21/police-use-of-stingray-cellphone-tracker-requires-search-warrant-appeals-court-rules/?utm_term=.24d920af494d.
  17. See, e.g., State v. Andrews, 134 A.3d 324 (Md. Ct. Spec. Appeals 2016); People v. Gordon, 58 Misc. 3d 544 (N.Y. Sup. Ct. 2017); United States v. Lambis, 197 F. Supp. 3d 606 (S.D.N.Y. 2016).
  18. Jones v. United States, 168 A.3d 703, 712-14 (D.C. 2017).
  19. 565 U.S. 400, 411 (2012) (emphasis in original).
  20. See, e.g., Prosthetic Solutions of Indiana, http://prosindiana.com/microprocessors/ (visited Feb. 26, 2018).
  21. Michelle Z. Donahue, How a Color-Blind Artist Became the World’s First Cyborg, National Geographic (Apr. 3, 2017), https://news.nationalgeographic.com/2017/04/worlds-first-cyborg-human-evolution-science/.
  22. Apple Inc., https://www.apple.com/ios/health/ (last visited Mar. 13, 2018).
  23. See, e.g., AVMA, Microchipping of Animals FAQ, https://www.avma.org/KB/Resources/FAQs/Pages/Microchipping-of-animals-FAQ.aspx (last visited Feb. 26, 2018).
  24. Three Square Market Microchips Employees Company-Wide, PRLog (Jul. 20, 2017), https://www.prlog.org/12653576-three-square-market-microchips-employees-company-wide.html.
  25. Id.
  26. Mary Bowerman, Wisconsin company to install rice-sized microchips in employees, USA TODAY (Jul. 25, 2017), https://www.usatoday.com/story/tech/nation-now/2017/07/24/wisconsin-company-install-rice-sized-microchips-employees/503867001/.

Eunice Park is an Associate Professor of Lawyering Skills at Western State College of Law. The views expressed in this article are the author’s own.
Return