https://youtu.be/By6itE9RqM8
Respondent Brief — Li and Yang
To be in the Supreme Court of the United States
April Term, 2018
TIMOTHY IVORY CARPENTER, PETITIONER
V.
UNITED STATES OF AMERICA, RESPONDENT
RESPONDENT’S OPENING BRIEF
Jovita Li & Catherine Yang
Counsel of Record
Greenwich High School
Room 528
Greenwich, Connecticut 06830
(203) 625-8000
Counsel for Respondent
Oral Argument: https://youtu.be/By6itE9RqM8
QUESTION PRESENTED
DOES THE WARRANTLESS SEARCH AND SEIZURE OF CELL PHONE RECORDS INCLUDING LOCATION DATA OVER THE COURSE OF 127 DAYS VIOLATE THE FOURTH AMENDMENT?
Table of Contents
QUESTION PRESENTED……………………………………………………………………………..…………………… 1
TABLE OF AUTHORITIES…………………………………………………………………………….…………………. 3
STATEMENT OF ARGUMENT…………………………………………………………………..………………..……. 5
ARGUMENT I: EXPECTATION OF PRIVACY……………….……..….…………………………..……..…..…. 6
ARGUMENT II: DISTINCTION…………………………….…….…………………………………….……………… 8
ARGUMENT III: THIRD PARTY DOCTRINE………………………………………………………….…..….…. 9
CONCLUSION……………………………………………………………………….…………………………..………….. 10
BIBLIOGRAPHY……………………………………………………………………………………………………….…….. 11
Table of Authorities
Cases
Ex parte Jackson,
96 U.S. 727 (1878) …….………….……………………………………………….……………………………..………. 5, 8
Katz v. United States,
389 U.S. 347 (1967) ……..…….………….……………………………………………….………………………..…… 5, 6
Smith v. Maryland,
442 U.S. 735 (1979) …….………….……………………………………………….…………………………….……… 5, 6
United States v. Forrester,
495 F.3d 1041 (9th Cir.2007) ………………………………………………….………………………………..……… 8
United States v. Jacobsen,
466 U.S. 109 (1984) ……………………………………………….……………………….…………………………..…… 9
United States v. Jones,
132 S.Ct. 945 (2012) …….………….……………………………………………….………………………………….…… 6
United States v. Meregildo,
876 F.Supp.2d 445 (S.D.N.Y. 2012) ……………………………….…………………………………………..……… 7
United States v. Miller,
307 U.S. 174 (1939) …….………….……………………………………………….………………………….……………. 9
United States v. Warshak,
631 F.3d 266 (6th Cir. 2010) ..….……………………………………………….………………………………………. 8
Constitutions
Stored Communications Act, 18 U.S.C. § 2703(d) …………………………………….………………..……. 6, 7
U.S. Const. amend. IV. …………………………………………………………….……………………………………….. 9
Other Authorities
“Bill of Rights as Proposed.” ConSource. Accessed February 23, 2018. http://consource.org/document/bill-of-rights-as-proposed.
………………………………………………………………………………………………………………….…………………… 6
National Humanities Institute. “James Otis: Against Writs of Assistance.” Who We Are: The Story of America’s Constitution. Accessed February 23, 2018. http://www.nhinet.org/ccs/docs/writs.htm.
……………………………………………………………………………………………………………………..………..………. 6
Thompson II, Richard M. “The Fourth Amendment Third-Party Doctrine.” Congressional Research Service. Last modified June 5, 2014. Accessed February 23, 2018. https://fas.org/sgp/crs/misc/R43586.pdf.
……………………………………………………………………………………………………………….………………………. 9
Statement of Argument
Fourth amendment protections are not applicable when there is no reasonable expectation for privacy. The expectation for privacy test, established by Justice Harlan’s concurrence in Katz vs. United States, requires that an individual has exhibited an actual expectation of privacy and the expectation is one that society is prepared to recognize as reasonable. Situations where there is no reasonable expectation for privacy are not protected by the Fourth Amendment, a conviction that was asserted in the ruling of Smith v. Maryland. In this case, there is no reasonable expectation for privacy as Carpenter’s phone records are not private property, but the property of a cell-service company. Under the third-party doctrine, there cannot be an expectation for privacy if information is voluntarily given to a third-party, such as a cell-service or telephone company. Furthermore, the FBI conducted a Constitutional seizure of Carpenter’s cell-phone data since they had probable cause due to a verbal confession from one of Carpenter’s accomplices, who had provided the FBI with the phone numbers that led to Carpenter’s arrest. Also, the Supreme Court established the distinction between the search of the content of communication and information necessary to convey said information in Ex Parte Jackson; the action of obtaining the “where” and “when” of Carpenter’s phone records, as opposed to the actual content, is Constitutional even without a warrant. As such, the Fourth Amendment is not applicable in this case due to the nature of the search and seizure.
Argument
I. The seizure of phone records was justified as there was an unreasonable expectation to privacy.
The original intention behind the Fourth Amendment was to prevent government authorities from utilizing general warrants or conducting unsubstantiated searches and seizures of private property. In “Arguments Against Writs of Assistance”, James Otis argues that “only special warrants to search such and such houses specially named, in which the complainant has before sworn he suspects his goods are concealed; and you will find in adjudged that special warrants only are legal. In the same manner I rely on it, that the writ prayed for in this petition being general is illegal. It is a power that places the liberty of every man in the hands of every petty officer.” These sentiments are reflected in the original proposed wording of the Bill of Rights: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
However, the search of Carpenter’s phone records clearly do not violate the original purpose of the Fourth Amendment as there was neither an unreasonable search nor a necessity for a warrant. The Supreme Court ruling in Smith v. Maryland narrowly tailored Fourth Amendment protections to situations that qualified under the founding fathers’ original intent: “Application of the Fourth Amendment depends on whether the person invoking its protection can claim a “legitimate expectation of privacy” that has been invaded by government action. In order for Carpenter’s argument to be valid, the petitioner must demonstrate that Carpenter possessed a reasonable expectation of privacy in accordance with Justice Harlan’s two-part test: he must have “exhibited an actual (subjective) expectation of privacy” and “the expectation be one that society is prepared to recognize as reasonable.”
In this situation, neither of the requirements are met. While it is reasonable for individuals to expect that the government will not infringe on the actual content of their phone calls without a warrant, the transactional records — location, receiver, time, and length of the call — are owned by the cell-service company. It is unreasonable for the petitioner to presume that these basic statistics, which cell-service companies collect, are the private property of Carpenter. Furthermore, this was not an arbitrary, unreasonable search; evidence and verbal testimony implicated Carpenter as one of the main suspects in a criminal investigation, which further erodes his expectation for privacy. In addition, the second requirement that “society is prepared to recognize as reasonable” is not met. What society considers as a reasonable expectation of privacy can be determined through judicial decisions and public opinion. Society considers 24/7 unwarranted surveillance unconstitutional and unreasonable as evidenced by the decision in U.S. v. Jones and the public outcry against the NSA PRISM surveillance program. However, society recognizes that nothing is completely private on the Internet, which changes the relationship between law enforcement and technological communications. For instance, the U.S. southern New York district court ruled in United States v. Meregildo et al that people have a reasonable expectation of privacy in the contents of their personal devices, but communications disseminated through a third-party (i.e. social media, internet-service provider, cell-service company, etc) can be accessed by the government through “a cooperating witness who is a ‘friend’ without violating the Fourth Amendment.” The Stored Communications Act, 18 U.S.C. § 2703(d), which authorized the seizure of Carpenter’s transactional records, adheres to the socially reasonable test under the aforementioned cases. The act only allows law enforcement to obtain electronic records if the “information sought, are relevant and material to an ongoing criminal investigation”. Law enforcement only pursued Carpenter’s phone records with the help of an accomplice. Under society’s expectations, Carpenter did not possess a reasonable expectation for privacy. Since there is no reasonable and legitimate expectation for privacy, the warrantless seizure of cell phone records over the course of 127 days does not violate the Fourth Amendment.
II. Carpenter’s location evidence was obtained constitutionally under the distinction established in Ex Parte Jackson.
Carpenter’s phone records were constitutionally obtained due to the fact that there was no government intrusion. The ruling in Ex Parte Jackson established that there was a clear distinction on what constitutes as an unwarranted government intrusion. In the majority ruling, Supreme Court Justice Field wrote that “letters and sealed packages of this kind… are as fully guarded from examination and inspection, expect as to their outward form and weight as if they were retained by the parties forwarding them in their own domiciles.” The outward form of mail pertains to the information contained in plain sight, which includes the address, the weight, and the recipient.
Even though electronic communications do not have a physical outward form, the same underlying principle from Ex Parte Jackson applies. Law enforcement has the right to view and inspect the electronic-equivalent of the “outward” form of cell-phone communications without a warrant, which would include time, relative location, recipient, and length of the communication. This was reaffirmed in U.S. v. Forrester, where the Ninth Circuit Court of appeals held that the electronic addresses of emails, IP addresses, and the total volume of data transmitted were not subject to Fourth Amendment protection. Another modern case decided by the Sixth Circuit Court of Appeals, Warshak v. United States, reaffirmed this distinction and held that the content of electronic communications, but not other account information, is protected by the Fourth Amendment. This distinction, even in a modern technological era, is minimally intrusive and reasonable and thus should be the same regardless of whether the outward form of the communication is tangible or electronic.
III. The Fourth Amendment does not apply when the information is obtained from a willing third-party.
The third party doctrine holds that information voluntarily given to third parties have “no reasonable expectation of privacy.” It was established by the United States Supreme Court in United States v. Miller, where Justice Lewis F. Powell asserted, “Documents subpoenaed are not ‘private papers’” but rather, part of the bank’s business records, and thus Miller had no reason to expect privacy with his bank records. The Supreme Court followed this doctrine in United States v. Jacobsen, deciding that a search did not take place when police opened a mailed package after its contents had already been viewed by an employee of a private freight carrier. There, the Court observed that once the defendant’s privacy expectation had been frustrated by one person, it became public information subject to government investigation. This applies to a variety of third parties, such as banks, phone companies, internet service providers, and email servers.
In the face of technological change, the third-party doctrine successfully maintains the balance of privacy and security. Professor Orin Kerr, a professor of law, argues that a criminal can use the services of technologically-developed third parties to commit crimes without having to expose these activities to areas open to public surveillance. This would upset the privacy-security balance that undergirds the Fourth Amendment because it would require police to have probable cause to obtain any evidence of the crime. Kerr explains, “The effect would be a Catch-22: The police would need probable cause to observe evidence of the crime, but they would need to observe evidence of the crime first to get probable cause.” Thus, the third-party doctrine responds to this imbalance by providing the same amount of protection regardless of whether the defendant commits the crime on his own or through the use of a third-party service. Furthermore, the third-party doctrine maintains a delicate balance between privacy and public information. The informational data is transmitted through third-parties, but the actual content of the information, in cases of telecommunications, is kept private due customer expectations. This grants the government warrantless access to the public knowledge, which is the data, but not to the private content of the information.
In this case, the police requested Carpenter’s transactional records from his cell-service provider. Not only did the company possess Carpenter’s transactional records, employees of the company had the right and ability to look at that information. Since the employees of the company could view Carpenter’s records (though not the actual content of his calls), the government had the right to view these records too. It should be noted that although the FBI didn’t request a formal warrant, they did ask a magistrate judge for permission, which complies with the Fourth Amendment’s check that police describe the “things to be seized.” The fact that a third-party could view the transactional data in a reasonable manner voids Carpenter’s claims for privacy, which justifies the warrantless seizure of his records by the FBI.
Conclusion
In conclusion, the warrantless search and seizure of cell phone records does not violate the Fourth Amendment. Searches and seizures are exempt from Fourth Amendment protections when there is no reasonable expectation for privacy as shown in this case. Not only were Carpenter’s transactional records the property of a third-party, his cell-service provider, but they were accessed with the permission and help of an accomplice, which nullifies Carpenter’s expectation for privacy. Furthermore, society does not recognize Carpenter’s expectation for privacy due to the fact that law enforcement did not conduct an overarching, 24/7 electronic surveillance, nor did they infringe on the actual content of Carpenter’s phone calls. In fact, the warrantless search and seizure of cell-phone location data is constitutional since the inspection of Carpenter’s transactional data (relative location, incoming and outgoing, etc) and not the actual content (conversation) of the call, does not constitute as an actual government intrusion. This is due in part to the third party doctrine, a legal principle that invalidates Fourth Amendment protections for private information that is voluntarily given to third-parties. Even in an unprecedented age of technology, the third-party doctrine is still applicable as it balances privacy and security, allowing police to investigate criminals that utilize third-party electronic services.
Regardless of the time period or technology involved, the crux of this case falls on whether Carpenter’s cell-phone records possessed a reasonable expectation for privacy and thus required a warrant. However, as the respondent has shown in this brief, cell-phone records do not have any expectation to privacy as they are transmitted to third-parties, contain no actual content of private conversations, and are obtained through reasonable means by society’s standards. Therefore, the warrantless search and seizure of cell-phone records, including transactional and location data, is not unconstitutional.
Bibliography
“Bill of Rights as Proposed.” ConSource. Accessed February 23, 2018. http://consource.org/document/bill-of-rights-as-proposed.
Ex parte Jackson, 96 U.S. 727 (1878)
Katz v. United States, 389 U.S. 347 (1967)
National Humanities Institute. “James Otis: Against Writs of Assistance.” Who We Are: The Story of America’s Constitution. Accessed February 23, 2018. http://www.nhinet.org/ccs/docs/writs.htm.
Smith v. Maryland, 442 U.S. 735 (1979)
Stored Communications Act, 18 U.S.C. § 2703(d)
Thompson II, Richard M. “The Fourth Amendment Third-Party Doctrine.” Congressional Research Service. Last modified June 5, 2014. Accessed February 23, 2018. https://fas.org/sgp/crs/misc/R43586.pdf.
United States v. Forrester, 495 F.3d 1041 (9th Cir.2007)
United States v. Jacobsen, 466 U.S. 109 (1984)
United States v. Jones, 132 S.Ct. 945 (2012)
United States v. Meregildo, 876 F.Supp.2d 445 (S.D.N.Y. 2012)
United States v. Miller, 307 U.S. 174 (1939)
United States v. Warshak, 631 F.3d 266 (6th Cir. 2010)
U.S. Const. amend. IV.