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Carpenter v. United States: Armed Robbery, Cell Phones, and Warrantless Obtainment of Business Records, Oh, My!

Fourth Amendment Privacy Telecommunications

United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016), cert. granted, No. 16-402, 2017 WL 2407484 (U.S. June 5, 2017)

Carpenter v. United States addresses whether the government must obtain a warrant to access and use business records in connection with an investigation. Evidence, including location information from his cellular providers’ business records, led to defendant Timothy Carpenter’s conviction of armed robberies in violation of the Hobbs Act of 1946, 18 U.S.C. § 1951. Carpenter was granted certiorari by the Supreme Court on June 5th.  He is contesting the admissibility of the location data the government obtained from his cellular provider’s business records, pursuant to orders by the local magistrates under the Stored Communications Act of 1986, 18 U.S.C. § 2703(d). The orders directed the defendant’s cellular provider to produce the locations of call origination and termination for defendant’s incoming and outgoing calls over the course of 127 days. Carpenter’s petition for certiorari focused on the scope of an individual’s “reasonable expectation of privacy” in the face of today’s vast technological advances and on the length of time represented by the records handed over to the government by his cellular provider, including his location information. Carpenter also pointed to circuit splits over both of these main questions presented by his case. The government, in its Brief in Opposition (“BIO”), dismissed these splits as an exercise in statutory interpretation, but Carpenter maintains that it is reflects a difference in the application of the Fourth Amendment.

Carpenter focuses on how society’s increasing digitization has created uncertainty over what constitutes a “reasonable expectation of privacy” under the Fourth Amendment. In his petition and his reply to the government’s BIO, Carpenter questioned the applicability of the third-party doctrine—developed in the 1970s before cell phones were available—to cases where cellular providers’ records are those at issue. The cert petition pointed to the growing number of states that require a warrant for cellphone tower information, either by statute or judicial opinion, and to Justice Sotomayor’s suggestion in United States v. Jones that there may be a need to reconsider the third-party doctrine. Carpenter submits that it is now time for such reconsideration—that today’s technology is becoming far too advanced to continue using a doctrine developed when such business records were kept on the exterior of an envelope. The government’s position relies heavily on the third-party doctrine; because the defendant “voluntarily conveyed to [the phone company] information” about his location by making phone calls on the provider’s network, and because the phone company “had facilities for recording and that it was free to record,” the defendant “assumed the risk that the information would be divulged to police.”

Carpenter also emphasized the cell phone records used in his conviction were taken over an extended period of time: 127 days, far more than the 28 days deemed to be “an extended period of time” for the purposes of GPS location tracking in Jones. The Sixth Circuit distinguished Carpenter from Jones based on the difference in the location information’s precision: while the GPS in Jones showed one’s location within 50 feet, revealing near-exact information about what establishments were visited and other potentially embarrassing or harmful information if compiled over time, the cellphone towers in the instant case showed information within one-half to two miles, which the Sixth Circuit deemed to be too broad an area to truly infringe upon an individual’s personal data. The government underscored the fact that law enforcement officers were inferring from the records that the petitioner was within a particular radius from a cellphone tower, rather than actively tracking the precise movements of the defendant. The government argued that this did not constitute a “search” under the Fourth Amendment, as law enforcement often deduces facts about a person’s movements from information gleaned from third parties, and this was no different.

It appears that the outcome of Carpenter will depend on how SCOTUS rules on the applicability of the third-party doctrine to business records obtained through technologies not yet available in the 1970s when the doctrine was developed. There is much excitement about this case, with amicus briefs filed by a coalition of technology interest groups and the Cato Institute, and Lawfare, the Washington Post, and security experts all weighing in. 

Rebecca Rechtszaid is a rising 2L at Harvard Law School. She is interested in the nexus of technology and media law.