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Matt Grimm and Matt Phillips Brief

Petitioner Brief – Grimm & Phillips

In the Supreme Court of the United States

 

March Term, 2018

TIMOTHY IVORY CARPENTER, PETITIONER

V.

UNITED STATES OF AMERICA, RESPONDENT

 

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

 

PETITIONER’S OPENING BRIEF

 

Matt Grimm & Matt Phillips

Counsel of Record

Lake Oswego High School

Room 213

Lake Oswego Oregon, 97034

(503) 534-2313

Counsel for Petitioner

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……………………………………………………………….………. 2

TABLE OF AUTHORITIES……….……………………………………………………….……. 4

STATEMENT OF ARGUMENT………………………………………………………………….5

ARGUMENT I: Unlawful Search by Police Negates Legal Validity of Evidence Source………. 6

ARGUMENT II: Previous Standards……………………………………………………6-7

ARGUMENT III: Privacy and the new era of technology………………………………..7

CONCLUSION……………………………………………………………….……………………8

Table of Cited Authorities

Cases:

Smith v. Maryland, 442 U.S. 735 (1979)………………………………………………………….7

United States v. Jones, 565 U.S. 400 (2012)…………………………….……………………5, 6, 7

Miller v. United States, 425 U.S. 435, 443 (1976)…………………………………………………7

Katz v. United States , 389 U.S. 347 (1967)………………………………………….……………6

 

Other Authorities:

 

Fourth Amendment to the Constitution…………………………………………………………5, 8

Stored Communication Act (18 U.S.C. Chapter 121 §§ 2701–2712)……………………………..6

Electronic Communications Privacy Act of 1986 (18 U.S.C.)………………………………………………..6

Statement of Argument

 

The Fourth Amendment of the United States Constitution does not allow for the government to obtain cell phone records including location data without a warrant. The Fourth Amendment protects, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. This right “shall not be violated”. Mr. Carpenter claims his 4th Amendment right was violated when the FBI seized his cellular tower location records. His claim is correct. The FBI needed to prove probable cause and then gain a  warrant to access the location records; they chose to bypass both of these procedures. This circumstance is no exception to the warrant process. The FBI needs to follow these procedures because of past court precedents, specifically United States v. Jones. This case established that there is a reasonable expectation of privacy in a person’s movement. Using cellular location data without a warrant would violate this precedent.

 

Lastly, Using the third party doctrine to allow this unreasonable search would be a mistake. When the third party doctrine was established, technology such as we have today was not accounted for. As seen in United States v. Jones the third party doctrine was not used because of this very reason. An expectation of privacy is something that should be accounted for in this case. In this new age of technology, data, that can hinder a fair trial, can be obtained more easily by the government. This reality may be disregarded by the opposition but should be noted as it is crucial.

 

All of this explains why the FBI was not doing good police work, but actually violating the constitution by seizing the cellular tower location records with no permit.

Argument

 

  1. Unlawful Search by Police Negates Legal Validity of Evidence Source

 

The 4th amendment of the U.S. Constitution protects the people from unlawful search and seizure without a warrant unless a probable cause can be confirmed. The government must provide probable cause for a warrant before entering any personal property of all peoples in the United States. The trust between the American people and their police is centered in the idea that their personal property is personal and may not be searched with lack of probable cause. The case in question begins with a clear violation of this right when the FBI searched the phone of John Doe without a warrant. They claimed use of the stored communications act (SCA) for their search, however, the SCA was created in 1986 as a part of the electronic communications privacy act which when conceived had no scope as to the growth of information stored in phones. The ECPA as well as the SCA violate the 4th amendment right as probable cause was not the standard for a warrant to search.

 

Furthermore the SCA states that the FBI may only access the phone if A “by the person or entity providing a wire or electronic communications service;” or B “by a user of that service with respect to a communication of or intended for that user;” The FBI reports no permission for a search received from John Doe nor was the information extracted from the phone “communication or or intended for that user”. We therefore believe that under the context of the FBI’s search and report the evidence received through the phone should be excluded.

   2. Tracking of Citizens Without Consent or Warrant Violates Previous Standards

 

The means by which the FBI received the phone numbers of the defendants was an intrusion of property without a warrant. Much like in U.S. vs Jones when the police trespassed upon a vehicle to attach a GPS tracking device. This creates a direct link and similarity between the cases of Jones, and our defendant as the methods through which the tracking was pursued is unconstitutional.

 

As stated above the methods used to conduct the search of John Doe’s phone were against federal beyond the rights of the federal government. We believe that as found in U.S. vs Jones the tracking of our defendants should be excluded not for intent but for method of reconnaissance. Katz vs U.S. found that people have a reasonable expectation of privacy. In neither case was a warrant issued to implement the means of tracking, and in our case there were no means of probable cause. Receiving the location of our defendants through tracking did not require a warrant due to the private party who held the information. However this is not relevant because the source of our defendants phone number is where the constitution was violated.

 

  3.     Privacy must take on a new meaning in an era of technology

 

Smith vs Maryland withheld that the government doesn’t need a warrant for a pen register. This however is in no way relevant to our case as phones themselves did not hold the contact information rather a seperate device captured them. A tracking device is a seperate technology from a pen register as is a contact list held within the hardware and software of a cellular phone. Therefore the precedent set in this case is in no way affiliated in the technology used today.

 

Miller vs U.S. 1934 includes in its third party doctrine that allows third parties to divulge information without a warrant from the government. At the time this ruling was conceived personal information was not so heavily documented and stored within third parties. No longer do third parties hold little more information than business transactions and paper trails, third parties can now tell, where a person is, what they are doing, their hobbies, there likes, their dislikes, and their political affiliation. We have reached a penultimate point where the government must adapt to technology and affirm a new concept of privacy. As Justice Sotomayor said in her concurrence to U.S. vs Jones “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” now is the opportunity to achieve this.

 

Conclusion

 

The government may not use information found on a cell phone searched without a warrant. If the government allows this action, the government would be able to use this location data and track anybody; this is due to the fact a vast majority of Americans have cellular devices today. This action invades the privacy of Americans. Although previous court actions would signal such behavior is acceptable, these standards did not account for the technology boom that has occured in the country since the time in which they were set in place. It is important that the court recognizes that if they sides with the United States, this may lead to big brother government becoming a reality. They will be able to track everything we do and inherently then be able to influence the behavior of the peoples. We must be careful now in the precedents about technology to prevent government corruption in the future.

Probable cause and a warrant must be obtained before cellular location data is given to the government. The Supreme Court should rule in favor of the petitionary Timothy Ivory Carpenter because the search and seizure of obtaining cellular location data violates the Fourth Amendment.

Brief in Favor of the Respondent in Carpenter v. U.S. | Laura Jiang & Alex Li

In the Supreme Court of the United States

February Term, 2018

TIMOTHY IVORY CARPENTER, PETITIONER

V.

UNITED STATES OF AMERICA, RESPONDENT

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RESPONDENT’S OPENING BRIEF

Laura Jiang & Alex Li

Counsel of Record

Lake Oswego High School

Room 213

Lake Oswego Oregon, 97034

(503) 534-2313

Counsel for Respondent

Oral argument: https://youtu.be/cw-k0kyACMc

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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  3

STATEMENT OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT I: FOURTH AMENDMENT AND PRIVACY . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT II: THIRD-PARTY DOCTRINE . . . . . . . . . . . . . . . . . . . . . . . .  . . . . . . . . . . . . . .7

ARGUMENT III: REASONABLE SEARCHES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

ARGUMENT IV: DEFAULTING TO CONGRESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

TABLE OF AUTHORITIES

Cases

Katz v. United States,

389 U.S. 347 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10, 11

Ontario v. Quon,

560 U.S. 746 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Rakas v. Illinois

439 U.S. 128 (1978)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Smith v. Maryland,

442 U.S. 735 (1979)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 8, 14

United States v. Harris,

106 U.S. 629 (1883)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

United States v. Jones,

565 U.S. 400 (2012)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Miller,

307 U.S. 174 (1939)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 11

United States v. New York Tel. Co.,

434 U.S. 159 (1977)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 14

United States v. Rabinowitz

339 U.S. 66 (1950) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Constitutional Provisions

U. S. Const., amend. IV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 13

Other Authorities

Brief of Petitioner, Carpenter v. U.S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

James Otis, ‘Against Writs of Assistance’ (1761). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Kerr, Orin S., Amicus Brief of Professor Orin S. Kerr in Carpenter v. United States (2017)  . . . 9

Mason, George. “Final Draft of the Virginia Declaration of Rights.” . . . . . . . . . . . . . . . . . . . . . 11

Orin S. Kerr, The Case for the Third-Party Doctrine, 107 Mich. L. Rev. 561 (2009). . . . . . . . . 8

Stored Communications Act, 18 U.S.C. § 2703(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

The United States Court of Appeals for the Sixth Circuit. Carpenter v. U.S. 13 Apr. 2016. . . . . 9

Statement of Argument

 The government’s collection of cell phone data, including location data, is not a search of “persons, houses, papers, and effects” under the Fourth Amendment. As such, the Federal Bureau of Investigation’s (FBI) data collection permitted under the discretion of a magistrate judge through the Stored Communications Act is constitutional. Katz v. United States also establishes the standard for “a reasonable expectation of privacy,” where “first, a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’” Precedent under U.S. v Miller establishes the third-party doctrine; records obtained from a third-party, in this case the retrieval of the petitioner’s transactional records from his service provider, are not in violation of a reasonable expectation of privacy. While Katz v. United States clarified a “search” to include electronic intrusion, precedent set by Smith v. Maryland concludes that collection of transactional records and locational data is not considered a search under the Fourth Amendment, waiving the subsequent warrant requirement. The petitioner can claim no proper expectation of privacy as the cell phone user should know that dialed numbers and location data is kept by their respective carrier company. necessary for legitimate business purposes. By actively using his cell phone for communications while in the middle of several robberies, the petitioner did not demonstrate any reasonable expectation of privacy. It is clear that the government of the United States of America, the respondent, is not in violation of the Fourth Amendment.
 

Arguments

I. This collection of the Petitioner’s cell phone data does not violate the Fourth Amendment’s protection against “unreasonable search and seizures,” as the petitioner does not demonstrate a reasonable expectation of privacy.

The first question to consider is whether the collection of transactional data, including location data of the petitioner, is considered to be a “search” under the Fourth Amendment. To answer this question, this Court must defer to the test established under Katz v. United States, determining whether the petitioner demonstrated a reasonable expectation of privacy and thus experienced a violation of their Fourth Amendment rights.

The Court has previously stated that “[l]egitimation of expectations of privacy by law must have a source outside the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Within each application of the law, it is also important to note that the Court “must find resolution in the facts and circumstances of each case” to additionally consider the “reasonableness” standard. The activity in this case is that the FBI used the petitioner’s phone number to collect 127 days worth of cell-data activity. Applying Smith, the nature of the activity was in regards to data collected from his cell phone provider and the petitioner cannot claim any violation or invasion of “property.” In a similar case, the Court noted:

“Indeed, a law enforcement official could not even determine from the use of a pen register whether a communication existed. These devices do not hear sound. They disclose only the telephone numbers that have been dialed – a means of establishing communication. Neither the purport of any communication between the caller and the recipient of the call, their identities, nor whether the call was even completed is disclosed by pen registers.”

Although the petitioner’s use of a cell phone and subsequent data collection is different from a pen register, the larger point made in Smith and United States v. New York Tel. Co. still stands. The “transactional records” obtained do not access any the content of any calls made by the petitioner, nor was the data actively collected by the FBI over a period of time—this was the collection of records at a single point of time of a mass of data that spanned 127 days. Any further claim of a “search or seizure” relies upon the an “expectation of privacy” regarding the numbers that the petitioner called and the location data gathered during the times in which he called other numbers from his cell phone—that is, while he was committing the robberies, not every single one of his phone calls or records.

The Court must reject this claim. First, there is no reasonable expectation of privacy in the numbers that an individual dials from their personal cell phone, nor would society generally recognise this information as private. The Court mentions:

“All telephone users realize that they must ‘convey’ phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills.”

The legitimate business interest in keeping these transactional records further proves there is no expectation from a subscriber to believe that these records of phone numbers dialed would be placed under a reasonable expectation of privacy.

 II. The Third-Party Doctrine allows the respondent to collect transactional data as established through precedent in Smith without diminishing any Fourth Amendment protections.

The Court has established the third-party doctrine, stating:

“The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. . . . This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.”

Given this, it is hard to place the petitioner’s claims of expectations of privacy as reasonable. It is important to mention here that this application of the third-party doctrine does not represent a dramatic invasion of privacy nor does it drastically limit the protections of the Fourth Amendment. Justice Marshall mentions in Smith, “Privacy is not a discrete commodity, possessed absolutely or not at all.” Those who adopt a doctrinalist view of the Fourth Amendment wrongly interpret privacy as an off-and-on switch, vastly oversimplifying the specificity of Carpenter’s case; it is improper to assume privacy through “a conception of privacy as total secrecy.”

To narrow the third-party doctrine would also significantly limit the abilities of law enforcement in future cases. Professor Orin Kerr of the USC Gould School of Law, who has written extensively on the third-party doctrine in his line of work, notes, “if at least part of a crime occurs in spaces unprotected by the Fourth Amendment, the police have at least some opportunity to look more closely at whether criminal activity is afoot.” It is paramount that channels of communication remain open specifically in the context of data because of its usefulness in criminal investigations. He also notes the importance of the third-party as a method of balancing security and privacy:

“The third-party doctrine responds with a rule that ensures roughly the same degree of privacy protection regardless of whether a criminal commits crimes on his own or uses third parties. The part of the crime that previously was open to observation—the transaction itself—remains open to observation. The part of the crime that previously was hidden—what the suspect did without third parties in his home—remains hidden. The result leaves the Fourth Amendment rule neutral as to the means of committing the crime: Using a third party does not change the overall level of Fourth Amendment protection over the crime.”

Second, while the petitioner may argue for a reasonable expectation of privacy when it comes to an individual’s location of their cell phone, there is no expectation of privacy in regards to the cell phone towers that are built independent of cell phone users, nor would any rational subscriber conclude that the cell phone towers could be considered an individual’s “property.” In accordance with the third-party doctrine and dialed numbers, location data is similarly collected not for the purpose of tracking an individual’s moment-by-moment location, but by necessity of connecting the individual to the cell phone tower for the purpose of calling, which was an activity taken by choice by the petitioner while the robberies were occuring.

While the petitioner discusses precedent which bans location tracking of an individual through the physical placement of a GPS, the circumstances of this case are different. In expert testimony from the Carpenter v. U.S. hearing in the United States Court of Appeals for the Sixth Circuit, it was stated that the radius for cell phone tower locations is 2.5 miles, a distance much more vague and non intrusive than the pinpoint accuracy achieved from a GPS satellite like the one installed in Jones. More importantly, while GPS signaling provides precise and constant tracking 24 hours a day, the FBI’s collection of data is in regards to specific call records over the course of 127 days when the robberies had been occurring. The transactional records acquired specifically regarded incoming and outgoing calls, information obtained using the particular number that belonged to the petitioner. Therefore, there is a clear delineation between the tracking of Jones and the call records of this case. Consequently, claims of constant tracking made by the petitioner cannot be accepted. The Sixth District Court writes that the respondent collected “all subscriber information, toll records and call detail records including listed and unlisted numbers dialed or otherwise transmitted to and from [the] target telephones from December 1, 2010 to present[,]” as well as “cell site information for the target telephones at call origination and at call termination for incoming and outgoing calls[.]” Location data tracking only occurred when calls were placed, as opposed to the autonomous tracking that occurs through a GPS signal, distinguish Carpenter’s case from Jones.

As such, the petitioner cannot claim to have an expectation of privacy in regards to the acquired location data, nor is there a societal expectation due to the conscious decision made by the petitioner to receive and make calls during the period of time in question.

 III. The warrantless acquisition of the petitioner’s transactional records was constitutional and legal, both through the procedural manner in which the data was acquired and because of the specificity of the data.

The third question is whether the collection of transactional records, without a warrant, is considered “unreasonable.” Procedurally, under Katz, the opinion of the Court suggests the FBi acted legally, utilizing the legal channels taken through the approvals of multiple magistrate judges. The Court writes:

“It is clear that this surveillance was so narrowly circumscribed that a duly authorized magistrate, properly notified of the need for such investigation, specifically informed of the basis on which it was to proceed, and clearly apprised of the precise intrusion it would entail, could constitutionally have authorized, with appropriate safeguards, the very limited search and seizure that the government asserts in fact took place.”

The founding fathers’ attempt to distance themselves from the oppression of the British Empire included the scrutinization and removal of oppressive writs. One such writ was the writ of assistance, implemented by the British government to expand the search power of its police. In his argument against unwarranted use of writs of assistance and greatly expanded police power, James Otis states:

“[I]n the old book, concerning the office of a justice of peace, precedents of general warrants to search suspected houses. But in more modern books you will find 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.”

Thus, the inclusion of specific warrants and legal channels are paramount to the safety and effectiveness of not only police, but the government as a whole. “Special warrants” are the check against tyranny in modern governmental systems, particularly the specificity of each warrant. Because of this, the specific legal channels cited in Katz—and that the FBI in this case followed—are important.

While the petitioner may believe there is an originalist interpretation of Fourth Amendment protections that would apply in this case, it is still not sufficient to rule in favor of Carpenter. In the unanimously adopted Virginia Declaration of Rights, George Mason, a prominent politician and delegate to the U.S. Constitutional Convention wrote,

“[G]eneral warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.”

The founding fathers understood their role in history and as such, knew that government ability to uphold the law was paramount, giving the government the constitutional authority to issue and utilize searches “particularly described and supported by evidence.

The Court’s specific discussion of permissible procedure in Katz is consistent with the magistrate judges’ approval of the FBI’s examination of Carpenter’s information under the Stored Communications Act. In the Court’s delivered opinion for Katz, they mention:

“Only last Term we sustained the validity of such an authorization, holding that, under sufficiently “precise and discriminate circumstances,” a federal court may empower government agents to employ a concealed electronic device “for the narrow and particularized purpose of ascertaining the truth of the . . . allegations” of a “detailed factual affidavit alleging the commission of a specific criminal offense.”

In this instance, where the FBI’s collection of transactional records was also necessary for “a specific criminal offense,” the narrowly tailored surveillance committed by the FBI is legally and constitutionally justifiable. Under Katz, the Court was dealing with the question of wiretapping of conversations, and not the petitioner’s transactional and location data obtained from a third-party. Such records hold at a lower standard of scrutiny in relation to privacy than individual surveillance of conversation. As such, the theoretically approved procedure according to the opinion of the Court and the lessened expectation of privacy in regards to the content of the data collected concludes that the FBI acted constitutionally and did not commit any violation of the petitioner’s Fourth Amendment rights.

 
IV. The Court should defer to Congress and local legislation to determine the appropriate protections for cell-site data.
While the petitioner may claim that cell phones are “indispensable for full participation in family, social, professional, civic, and political life,” a developmentalist view of the amendment is improper. It “risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” The Court has also offered that “technological equipment might have implications for future cases that cannot be predicted.” In essence, ruling against the respondent would be too drastic a measure before we collectively can figure out the implications of technological innovation.
 

There is no need for the Court to create a bright-line test for cell-site data collection as there is no fundamental intrusion. Because the expectation of privacy is so minor in this case, this is an area best left explored by Congressional and other statutory law. In accordance with the relationship between business records and transactional data, it is preferable for legislative regulation under the Commerce Clause.

 

It is also imperative the Court not create too great a burden on law enforcement. The ease at which cell phones make criminal activity possible is immeasurable, thus raising the constitutional threshold for metadata searches ill advised. Technological changes have created many barriers to law enforcement ability, such as encryption leading to the iPhone dispute in 2016. The Department of Justice stated, “[i]t remains a priority for the government to ensure that law enforcement can obtain crucial digital information to protect national security and public safety, either within cooperation from relevant parties or through the court system with cooperation fails.” Evolving cyber security necessitates a more potent and effective system of data collection that should not be significantly infringed on by the Court.

Conclusion

The collection of the petitioner’s cell phone records does not violate the Fourth Amendment protections against “unreasonable search and seizure.” Under the privacy test established by Katz v. United States, the petitioner fails to prove a “reasonable expectation of privacy” as the transactional records collected by the respondent are non-intrusive, nor are the unreasonable. The petitioner, by owning a cell phone, should recognise that they voluntarily surrender certain kinds of information to their cell phone service provider for business record collection purposes. These include call records and the location data that is necessarily recorded in order to connect the caller from their location to the nearest cell tower for the call to occur.

Under the third-party doctrine, the Court has previously held that information like transactional records are surrendered by the user of the service, in this case cell phones, and that “the Fourth Amendment does not prohibit the obtaining of information revealed to a third party.” The cell towers, the ones in question that are responsible for transmitting location data within 2.5 miles, are not owned by the caller, meaning the petitioner cannot claim any sort of violation onto their “property.”

In addition to these failed claims to privacy, the procedural manner in which the FBI acted was also perfectly constitutional and legal; the collection of the transactional data was carefully approved by multiple magistrate judges and an act of tailored surveillance. Dicta proves in favor of the respondent, where in Katz v. United States the Court mentioned that the actions of the government would have been constitutionally authorized had the government gone through the motion of magistrate judge approval. The narrowly tailored collection in this case follows a similar pattern of thinking, with the FBI actually having approval from magistrate judges.

Following the application of the privacy test and third-party doctrine, the intrusion is miniscule. Because of the Commerce Clause and legislation like the Stored Communications Act, the line for cell-data communication is best drawn by Congress. Overly broad rulings by the Court risk unknown consequences due to the limited knowledge regarding the potential for technology and its advancements. It is necessary that the Court recognise there is no fundamental basis for the Court to determine the limits of transactional record collection.

Respondent Brief – Pleas & Repp

Respondent Brief – Pleas & Repp

     In the Supreme Court of the United States

     February Term, 2018

 

TIMOTHY IVORY CARPENTER, PETITIONER

V.

 UNITED STATES OF AMERICA, RESPONDENT

 

                       ON WRIT OF CERTIORARI

      TO THE UNITED STATES COURT OF APPEALS

                       FOR THE NINTH CIRCUIT

                   RESPONDENT’S OPENING BRIEF

                      Whitley Pleas & Caroline Repp

                               Counsel of Record

                         Lake Oswego High School

                                      Room 213

                       Lake Oswego Oregon, 97034

                                  (503) 534-2313

                           Counsel for Respondent

           Oral Argument: https://youtu.be/UxJRVC1aTm8

                         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………………………………………………………………….2

TABLE OF AUTHORITIES……………………………………………………………….2, 3

STATEMENT OF ARGUMENT ………………………………………………………..3, 4

ARGUMENT: …………………………………………………5, 6

PROPOSED STANDARD………………………………………………………………..6

CONCLUSION…………………………………………………………………………………7

Table of Cited Authorities

Cases

Smith v. Maryland,

565 U.S. 400 (1979)…………………………………………………………………………………………4, 5, 6

United States v. Miller,

425 U.S. 435, 443 (1976)………………………………………………………………………………………4, 5

Olmstead v. United States,

277 U.S. 438 (1928)…………………………………………………………………………………………4

Katz v. United States ,

389 U.S. 347 (1967)………………….…………………………………………………………………..4, 5

California v Hodari D.,

499 U.S. 621 (1991)………………………………………………………………………………………4

Ex Parte Jackson,

96 U.S. 727 (1878)………………………………………………………………………………………5

Schneckloth v. Bustamonte,

412 U.S. 218 (1973)………………………………………………………………………………………………4

Rakas v. Illinois,

439 U.S. 128 (1978)………………………………………………………………………………………………4

United States v. Jones,

565 U.S. 400 (2012)……………………………………………………………………………………………….4,5

Other Authorities:

The Third-Party Doctrine………………………………………………………………………………….4, 5, 6, 7

The Stored Communications Act……………………………………………………………………………….5, 6

The Fourth Amendment to the Constitution………………………………………………………..3, 4, 5, 6, 7

The Hobbs Act………………………………………………………..6

Statement of Argument

The Fourth Amendment of the United States protects people from unreasonable searches and seizures of their persons, houses, papers, and effects by requiring the use of judge-issued warrants. The defendant in Carpenter v. U.S. has asserted that law enforcement’s search violated the Fourth Amendment, saying that there was a lack of probable cause. The District Court of Eastern Michigan has disagreed with this assertion and maintain that law enforcement’s examination of cell site records is not a search, rendering the need for a warrant and, subsequently, Fourth Amendment protection, inapplicable. In addition, the Sixth Circuit Court of Appeals stated, upon reviewing the case, that “In Fourth Amendment cases the Supreme Court has long recognized a distinction between the content of a communication and the information necessary to convey it. Content, per this distinction, is protected under the Fourth Amendment, but routing information is not.”

As was established in Katz v. U.S., the Fourth Amendment only applies when the defendant has a reasonable expectation of privacy in the specific place that was searched. Thus, a warrant is not needed in situations when the defendant does not have a reasonable expectation of privacy. In order to determine when a person has a reasonable expectation of privacy, the context of the situation must be considered. In Rakas v. Illinois, the Court established that the expectation of privacy must be determined by referencing sources beyond the Fourth Amendment itself.

In this case, the Third-Party Doctrine is the relevant source – or standard – to determine the expectation of privacy. Under Smith v. Maryland, Fourth Amendment protection does not extend to information given to third parties. Furthermore, in U.S. v. Miller, information from a bank was not protected because the customer lacked “ownership” or “possession” of the information. Similarly, the cell site data of phone users is under the possession of the provider. The Court also determined in the case that the information used had already been voluntarily exposed to the banks. In this case, correspondingly, the cell site data that law enforcement used would have already been exposed to the cell company. Under the aforementioned standards, the defendant would not have a reasonable expectation of privacy, and consequently, a warrant would not have been required.

In the opinion for Olmstead v. U.S., Justice Taft stated that since the Fourth Amendment was intended to protect people’s property, unless law enforcement tresspasses on what is owned or controlled, there is no “search.” In this case, the cell site data was not owned or controlled by the defendant. Finally, the Court established in California v Hodari D. that in order to expect Fourth Amendment protection, there must actually be a “search,” and a “seizure.” Since this case involves no legally-recognized “search,” Fourth Amendment protection does not apply.

Argument

The case of Carpenter v. U.S. largely revolves around the defendants’ expectation, or rather lack thereof, of privacy. To assert that any seizures ensued during the crime scene would be inaccurate because no evidence was forcefully impounded; one of the four men involved in the robberies admitted his involvement in the crime, subsequently offering his and his accomplices’ phone numbers to the police as a means of evidence. The voluntary nature of this acquisition of evidence is precisely what prevents the cell phone numbers from being considered “seized.” This confession, but even more importantly, this concession of evidence, actually interferes with any potential expectation of privacy according to The Third-Party Doctrine. This legal doctrine holds that once an individual voluntarily hands over information or evidence to a third party, they automatically rescind their expectations of privacy. The application of The Third-Party Doctrine can be seen in cases such as Smith v. Maryland and U.S. v. Miller. In Smith v. Maryland, it was decided that telephone numbers do not possess any constitutional protections and therefore do not receive a reasonable expectation of privacy because they are willingly provided to telephone companies. Regarding the case of U.S. v. Miller, the Supreme Court determined that any information available in business transaction records also does not have any reasonable expectation of privacy when the government obtains it from a third party.

In Carpenter v. U.S., police used the provided cell phone’s records in order to discern the other accessories to the robberies. As previously established, phone numbers are not permitted any Fourth Amendment protections. After the FBI requested transactional records from magistrate judges, it was determined that they would be allowed access in accordance to The Stored Communications Act, which authorizes the government to observe transactional records when they have reasonable grounds to believe they are pertinent to an ongoing criminal investigation.

These records led the police to Timothy Carpenter and Timothy Sanders. Both defendants argue that the FBI infringed upon their Fourth Amendment rights by conducting a warrantless search without any probable cause. In order for a search to occur, however, one must maintain a reasonable expectation of privacy, and in the case of Carpenter v. U.S., The Third-Party Doctrine relinquishes this expectation. The police’s examination of the cell phone records cannot be considered a search due to the nonexistent expectation of privacy. Furthermore, probable cause is not necessary as it is stricter than the reasonable grounds standard which is associated with The Stored Communications Act.

In the case of Katz v. U.S., it is established that police cannot eavesdrop on phone calls without a proper search warrant. This is distinguished from Carpenter v. U.S. because no messages or phone calls from either party were read or listened to by the FBI. They had access to their phone numbers but remained unaware of the actual content of their communications. Although this data may be incriminating, no confession of guilt, either inadvertent or intentional, can be conjured based off of the defendants’ transactional records. Conversations have a reasonable expectation of privacy while cell phone numbers do not. In addition, the concept that police can use these cell phone records but cannot view any sent messages (or listen to any phone calls) partially derives from Ex Parte Jackson, a case in which the Supreme Court settled that although the government can use the names and addresses written on a letter or package, they still need a search warrant to actually open them and observe their contents.

Concerning the locational data that was obtained in Carpenter v. U.S., it was ruled in U.S. v. Jones that police cannot attach GPS devices onto an individual’s vehicle without a warrant. The locational data that was acquired from cell towers in Carpenter v. U.S. is far less specific than GPS devices on the grounds that they only entitle police to find the general area of an individual’s whereabouts rather than their exact location. Cell site data involves service providers which are a third party. Furthermore, the FBI in U.S. v. Jones actively placed the GPS device onto the defendant’s car to track him, while in Carpenter v. U.S., the police simply utilized the already present cell site records for the ongoing investigation.

Precedents established by cases such as Ex Parte Jackson and Smith v. Maryland make it evident that not only was any expectation of privacy relinquished in Carpenter v. U.S., but also that the police were not in violation of the Fourth Amendment when they conducted a warrantless search and seizure. They acted in accordance with the Stored Communications Act and never intruded upon the contents of Carpenter’s or Sanders’ messages or phone calls. The defendants were in direct violation of The Hobbs Act and no evidence of the transactional records needed to be excluded from trial since no actual search or seizure was executed, meaning that the FBI did not have to request a search warrant to examine the records.

Proposed standard

Fourth Amendment protection does not extend to the information used to send messages because service providers retain control of the information under the Third-Party Doctrine. Fourth Amendment protection applies to the content of the message itself, not the information used to send it.

Conclusion

The warrantless search and seizure that occured in Carpenter v. U.S. does not violate the Fourth Amendment. The content of the message requires a search warrant to be used by law enforcement, but we agree with the Sixth Circuit’s assertion that the Court must recognize the legal difference between the content of a message and the information used to transmit it. Therefore, content should be protected by the Fourth Amendment, but the information used to send it should not.

Under the Third-Party Doctrine, evidence voluntarily given to a third party is not protected by the Fourth Amendment. Since Fourth Amendment protection did not extend to the cell site data, there was no need for a warrant. Furthermore, the information used to transmit messages does not have the same reasonable expectation of privacy as the message itself. Ultimately, since the data was not protected under the Fourth Amendment, no “search” actually occurred and the rulings of the Sixth Circuit and the district court should be upheld, along with the aforementioned proposed standard that differentiates between the protection of a message itself and the information used to send it.

Sarah Mason and Delaney Ericson Petitioner Brief

Petitioner Brief – Mason and Ericson

In the Supreme Court of the United States

October Term of 2018

Timothy Ivory Carpenter

V.

United States of America

Petitioner’s Opening Brief

Sarah Mason and Delaney Ericson

Counsel of Record

Lake Oswego High School

Lake Oswego, Oregon

Counsel of Petitioner

Oral argument: https://youtu.be/aUTaqL5sWPc

Table of Contents (page numbers might be off because this was done in google docs)

Table of Authorities………………………………………………..3-5

 

Question Presented……………………………………………………6

 

Statement  of argument……………………………………………….7

 

Argument I Historical Evidence………………………………………8-10

 

Argument II Expectation of privacy………………………………….11-12

 

Argument III Warrant requirement…………………………………….13-14

 

Argument IV Third party doctrine……………………………………..15-16

 

Argument V Technological Safeguards……………………………….17-18

 

Proposed Standard………………………………………………………19

 

Conclusion………………………………………………………………20

Table of Cited Authorities

Cases

United States v. Jones 565 U.S. 400 (2012)………………………………..7, 17

 

Entick v. Carrington (1765)………………………………………………………8

 

Boyd v. United States 116 U.S. 616…………………………………8

 

Katz v. United States 389 U.S. 347 (1967)……………………………….11

 

California v. Greenwood 486 U.S. 35 (1988)……………………………..11

 

Kyllo v. United States 553 U.S. 27 (2001)………………………………..11

 

California v. Ciraolo 476 U.S. 207 (1986)……………………………………11

 

Florida v. Riley 488 U.S. 445 (1989)……………………………………………11

 

United States v. Davis 754 F. 3d 1205 (11th Cir. 2015)…………………..11

 

United States v. Leon 468 U.S. 897 (1984)……………………………………11

 

Oliver v. United States 466 U.S. 170 (1984)…………………………………..11

 

United States v. Watson 423 U.S. 411 (1976)………………………………….12

 

Terry v. Ohio 392 U.S. 1 (1968)…………………………………………………….12

 

Ex Parte Jackson, 96 U.S. 727 (1878)……………………………………………..12

 

Berger v. New York 388 U.S. 41 (1967)…………………………………………..13

 

Commonwealth v. Estabrook 472 Mass. 852 (2015)……………………………13

 

Commonwealth v. Augustine 472 Mass. 448 (2015)……………………………13

 

State v. Earls 70 A. 3d 630 (N.J. 2013)………………………………………………13

 

United States v. United States District Court for the Eastern District of Michigan 407 U.S. 297 (1972)………………………………………………………………………..13, 15

 

United States v. Miller 425 US 435(1976)………………………………………….14

 

Riley v. California 573_(2014)………………………………………………………….14, 15, 16

 

Smith v. Maryland 442 US 735 (1979)……………………………………………….15

 

Carroll v. US 267 US 132 (1925)……………………………………………………….16

 

City of Ontario v. Quon 560 US 746 (2010)………………………………………..15

 

United States v. Warshak 631 F.3d 266; 2010 WL 5071766; 2010 U.S. App. LEXIS 25415…………………………………………………………..15

 

Arizona v. Gant 556 US 332 (2009)…………………………………….18

 

United States v. Knotts 460 US 276 (1983)……………………………18

 

United States v. Karo 468 US 705 (1984)………………………………18

 

Mapp v. Ohio, 367 US 643 (1961)………………………………………..13

 

In Stanford v. Texas, 379 US 476 (1965)……………………………..13

 

Other Sources

James Otis, Arguments against Writs of Assistance (February 1761)…..8

 

James Madison, “Bills of Rights as Proposed” (February 4, 1789)…..8

 

Stored Communications Act , 18 U.S.C.§ 2703(d)……………………….7,13

 

N.Y. Code of Crim. Proc. § 813-a………………………………………12

 

The Massachusetts Declaration of Rights (Enacted 1780 as part of a state constitution)………..9

 

George Mason, Virginia Declaration of Rights (unanimously adopted June 12, 1776)……….9

 

New York Ratification Convention Debates and Proceedings(July 19, 1788)…..9

 

To the Farmers and Planters of Maryland, Md. J., Apr. 1, 1788…………8

 

Bennett Stein, Fighting a Striking Case of Warrantless Cell Phone Tracking (July 1, 2013)…………17

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?

Statement of Argument

The search of Timothy Carpenter’s cell phone records constitutes a search that requires a warrant based upon probable cause. United States v. Jones 565 U.S. 400 (2012), clearly articulates that long term tracking of people is unconstitutional.  The third party argument says that searches can be done without a warrant, if the information gathered could also be seen by another party. However, this does not stand, as precedent shows the high level of information stored on cellular devices does not allow for the third party exception. The magistrate judges in this case allowed the FBI to use information on the cell phones, such as historical cell site location information, after a confession brought forward other members of the crime’s cell phone numbers. The magistrate judges allowed this under the Stored Communications Act , 18 U.S.C.§ 2703(d), which  states that “specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”  The lack of “specific and articulable facts” comes from the matter that information was gathered over the course of 127 days rather than a singular, specific moment.  This brings forward the fear of general search warrants that were made under writs of assistance during colonial times, prompting the creation of the fourth amendment.

  1. Historical Evidence

Although James Madison was not a proponent of adding a Bill of Rights, a push from the anti-federalists led to its creation. Of the rights listed,  the fourth amendment granted a person’s protections from government interference. The fourth amendment  written by James Madison, in “Bills of Rights as Proposed” (March 4, 1789) declares, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”. It arose from the fear that colonists had against writs of assistance which served as general search warrants. James Otis, declared “As this writ of assistance is. it appears to me . . .  the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of the constitution, that ever was found in the English law-book” in Arguments Against Writs of Assistance (February 1761).  In a case decided in an English court, Entick v. Carrington Lord Camden wrote “ The great end for which men entered in society was to secure their property, that right is preserved sacred and incommunicable in all instances where it has not been taken away or abridged by some public law for the good of the whole…By the laws of England, every invasion of privacy, be it ever so minute, is a trespass” in the case of Boyd v. United States 116 U.S. 616, the Supreme Court declared Entick a guide to understanding the Fourth Amendment.  Our Fourth Amendment is founded on the importance of retaining one’s privacy even if that may impede the accessibility of law enforcement to information that helps them in criminal cases. Intrusions to privacy were a common complaint of the colonists, as written in a letter to the farmers and planters of Maryland in 1788, “Nay, they often search the clothes, petticoats and pockets of ladies or gentlemen (particularly when they are coming from on board an East India ship), and if they find any the least article that you cannot prove the duty to be paid on, seize it and carry it away with them; who are the very scum and refuse of mankind, who value not their oaths, and will break them for a shilling.”  The right to be secure in your effects without fear of unreasonable search and seizure was established early on in America’s history, and clearly is still a relevant fear, as police execute warrantless searches of private phone records and data, in a way most similar to the unfounded searches of the people mentioned in the letter.  In the Virginia Declaration of Rights George Mason declared, “[General warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.” This indicated the fears of warrants lacking a specific scope and purpose. In the case before us, while the police did have evidence and probably would have probable cause to receive a warrant, the search was not directed at a particular “place to be searched.”  Rather, it was conducted over a long period of time at various locations.  The Massachusetts Declaration of Rights stated, “Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.”  In the case of Carpenter, the police did not have a warrant, although they had the probable cause to obtain one, which is a clear violation of the spirit of the Massachusetts Declaration of Rights.  With the police searching cell phone records without a warrant, Carpenter’s protection from unreasonable searches was breached, as was the admissibility of the evidence obtained in this illegitimate search. In the New York Ratification Convention Debates and Proceedings (July 19, 1788), “[E]very freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, or his property; and therefore that all warrants to search suspected places, or seize any freeman, his papers or property, without information upon oath, or affirmation of sufficient cause, are grievous and oppressive; and that all general warrants (or such in which the place or person suspected, are not particularly designated) are dangerous and ought not to be granted.” The question brought up here in Carpenter v. United States is whether this search was reasonable.  Does the reasonable person believe that the police have the authority to track the location, association, and the actions of  people without a warrant for a long period of time? This sounds like the “dangerous” general searches mentioned above.  The private information of the inner workings of one’s day, gathered through the historical cell site location information, should not be able to gathered without a warrant.

II.    Expectation of privacy in precedent is in favor of the Petitioner

In Katz v. United States 389 U.S. 347 (1967), the court established the standard commonly referred to as, “expectation of privacy.”  In the case of Katz, the unwarranted wiretap of a phone was ruled as unconstitutional, based on the premise that telephone conversations are assumed to be private. In Carpenter, law enforcement did not intrude into conversations, but the details of one’s location throughout the entire day are just as sensitive as one does not expect an infiltration into this area.  Contrast this with the case of  California v. Greenwood 486 U.S. 35 (1988), where garbage cans on the curb are not considered private because the public can see the contents.  The garbage can, does not move, however, unlike Carpenter, who was in the public eye, but did not stay stationary. The moment that one steps out into the public eye, they give up enormous amounts of privacy. The house remains one of the most guarded areas from governmental interference. In the case of Kyllo v. United States 553 U.S. 27 (2001), law enforcement used a thermal imaging device to detect the growth of marijuana, but was also able to track movement of the people inside the home, which was a gross violation of the fourth amendment.  The search of Carpenter’s phone records was unconstitutional as it gave police long-term information about Carpenter’s location that the public would not know.  In the case before us,  the government is altering their view as well, while the cell phone site location information  were within a public area, the public does not follow a person throughout their day.  The question here is what level of privacy did the petitioner, Timothy Carpenter have.  The contents of the cell phone record were not searched, but the ability to track a person throughout their daily movements is a horrific violation into one’s privacy.  People have the ability to see Carpenter at these locations, so how much privacy should he be awarded to where he is, the answer remains the level of privacy is still high enough where a warrant needs to be issued, as even close relationships do not know where a person throughout their entire day. There is a  great concern about the “watching eye” of the government’s ability to track a person’s movement with little safeguards to stop them, if this case is ruled in favor of the United States.  In California v. Ciraolo 476 U.S. 207 (1986), the court held that a private plane flown over one’s backyard was not a violation because as quoted by Chief Justice Berger, “took place within public navigable airspace” as commercial airplanes would be able to see what law enforcement could.  Carpenter differs as law enforcement is not able to see a person’s movements unless they were tracking them by foot.  Law enforcement is altering their view by being able to advance their vision with modern technology.  The ruling in Ciraolo was affirmed in the case of Florida v. Riley 488 U.S. 445 (1989), in which a helicopter was used to the same effect where the public eye was able to see the same way as law enforcement. In the case of United States v. Davis 754 F. 3d 1205 (11th Cir. 2015), the eleventh circuit held that obtaining the information was done through the good faith exception established in United States v. Leon 468 U.S. 897 (1984).  Using the good faith exception, may be prevalent in this case, but cannot stand for each case where historical cell site location information is gathered. In Davis, the court ruled that one’s cell phone location was within one’s reasonable expectation of privacy.  Lastly, in Oliver v. United States 466 U.S. 170 (1984), the open field doctrine applied because people have no legitimate expectation of privacy in the open, but this is not an open field, if they can track every movement without a warrant, it becomes an open planet.

III. The need for a warrant is necessary.

In the case of United States v. Watson 423 U.S. 411 (1976), Justice Powell delivered a concurring opinion where he says that always requiring a search warrant can unnecessarily impede local enforcement.  Clearly pointing to the fact that exceptions to the warrant requirement are a necessary component of our judicial system, but there is a limit to how far exceptions go before they “eat the rule”. This is one instance where an exception gives too broad of an authority.  In Terry v. Ohio 392 U.S. 1 (1968), an exception allowed a short-term pat down of people without an arrest or warrant.  The police in New York’s “stop and frisk” policies went too far and targeted minority groups.  The same could be said of this where it leads to law enforcement tracking one’s movement with little safeguards. In Ex parte Jackson, 96 U.S. 727 (1878) the court ruled that the government needed to have a warrant to search the contents of the letters.  They could view what was on the outside of the envelope because it was within the eye of the postman. This relates to our case as a warrant should be required before the police can search something that is out of their eyesight, as Carpenter’s cell phone data was.  In Stanford v. Texas, 379 US 476 (1965) the court ruled that the protections of the fourth amendment are guaranteed in the states as well by the fourteenth amendment.  Although this was elaborated as well in Mapp v. Ohio, 367 US 643 (1961), it also mentioned that states may not constitutionally issue general warrants as well as anything that infringes upon the first amendment shall not be issued.  While the first amendment statement is not prevalent in this case the general warrant part is.  In this instance the tracking of Carpenter was extremely broad.  The search was one that did not state a specific time or place to be searched.  In Berger v. New York 388 U.S. 41 (1967), explained that a New York statute ( N.Y. Code of Crim. Proc. § 813-a) violated the fourth amendment because the electronic eavesdropping in this case was allowed without any safeguards.  This parallels with our case as a warrant was not issued to safeguard against law enforcement interaction.  Magistrate judges used the Stored Communications Act to allow the collection of the information, but once again this is not the same as a warrant issued upon probable cause, but offers significantly less protection. In Carpenter the Stored Communications Act 18 U.S.C.§ 2703(d) did not follow the “specific” facts to watch a person’s movement through cellular information over the course of 127 days.   Also, the Stored Communications Act , 18 U.S.C.§ 2703(d) was not adequate to qualify for the search that occurred. It is unconditional to have a search of this magnitude without a warrant and done by magistrate judges. To gather historical cell site location information, a warrant granted by a court judge upon probable cause needs to be issued.  In a case decided by a Massachusetts court, Commonwealth v. Estabrook 472 Mass. 852 (2015), ruled that historical cell site location information was accessible if it was within the time frame of six hours claiming that longer term is not permissible.  Later on in Commonwealth v. Augustine 472 Mass. 448 (2015) in which they declared that a warrant upon probable cause must be issued if this information is to be gathered which takes away even the six hour possibility.   In a New Jersey court,  State v. Earls 70 A. 3d 630 (N.J. 2013), the court held that the gathering of cell site location information should require a search warrant unless it fits under one of the existing exceptions, such as a search incident to lawful arrest, consent of the search, or during an emergency/hot pursuit.  It is important to note that in these state court decisions there is an added layer of complexity which is state constitutions.  State constitutions retain the ability to extend one’s rights meaning that cell site location information collection may be a violation under state authority rather than the fourth amendment.  In United States v. United States District Court of for the Eastern District of Michigan 407 U.S. 297 (1972), the court held that government officials must obtain a search warrant prior to beginning electronic surveillance even if domestic security issues are involved such as in our case with the bank robberies, as the search did not fall under any of the exceptions to warrantless searches.  Safety versus freedom is a value tenison constantly present in our society.  But if the founding fathers felt the need to secure our papers and effects through the fourth amendment (even though it might give up some safety) that truth should remain today.  It cases such as these safety is not an justifiable excuse to go forward with a search lacking a warrant.

IV. Third Party Doctrine is not applicable.

The court has established third party doctrines, which state that if there are documents or data held by a third party, the people do not have expectation of privacy to those materials. However, in other cases involving technology the boundaries of the third party rule are not always perfectly clear.  In US v. Miller 425 US 435(1976), the court reversed the fifth circuit’s ruling that the  collected bank records of Mitch Miller were not a violation of the fourth amendment because the bank was a third party, and therefore Miller had little expectation of privacy.  Justice Powell explained, “documents subpoenaed are not [Miller’s] ‘private papers’.  This is precedent establishing the third party rule which allows for such a search without a warrant.  The difference is that in Carpenter the court relies on the decision of Riley v. California 573_(2014) which established that in an search incident to arrest the police would need a separate warrant to search the phone based on the vast information that phone contains.  The court has decided that the information contained on cell phones has massive amounts of data; therefore, raising the expectation of privacy and making it an object with an expectation of privacy that needs a warrant.  In another third-party case, Smith v. Maryland 442 US 735 (1979), the court ruled that cell phone pen registers are not protected as clients voluntarily provide the numbers to telephone companies meaning that it is not an infringement to gather this information without a warrant.  However, Carpenter did not voluntarily give his cell phone company the location of his every move for a long period of time.  In this case, the government clearly infringed on a an area that does have a reasonable expectation of privacy.  Riley v. California 573 U.S._(2014) determined that warrants are necessary for data on smartphones, as they hold so much personal information.  That data, stored with cloud computing is not even on the phone itself.  As cloud computing is clearly a third party, it follows that a warrant is required to obtain records of a person’s data.  In Carpenter, his locations were obtained in a warrantless search a third party’s data, but in this case the third party was not cloud computing but cell towers, which have just as much personal information as a person’s cloud data, as cell towers hold copies of text messages, calls, and keep track of the phone’s location and should be granted just as much protection as such.  While City of Ontario v. Quon 560 US 746 (2010) does conclude text messages can be searched, the difference between this case and Carpenter was that the phone in question being searched was a city-issued phone, and the city explicitly stated that it reserved the right to “monitor and log all network activity including email and Internet use, with or without notice”.  Carpenter’s phone was privately owned, and therefore the decision reached in City of Ontario v. Quon 560 US 746 (2010) has no holding.  In United States v. Warshak 631 F.3d 266; 2010 WL 5071766; 2010 U.S. App. LEXIS 25415, it was determined that it is in violation of the Fourth Amendment to compel someone’s Internet service provider to turn over emails without a warrant.  Much like in Carpenter, third parties with data relating to both phones and computers hold a huge amount of sensitive personal information, and people should feel secure that authorities should have to follow the same guidelines in searching his or her Internet service provider, cell phone company, or any other third party containing personal data as the authorities follow in searching his or her own person.  Finally, in United States v. United States District Court for the Eastern District of Michigan 407 U.S. 297 (1972), the court held that before government can begin “electronic surveillance” a warrant needs to be obtained even if domestic security issues such as border or cyber security are present.  We would urge the court to follow this precedent as the records gathered without a warrant are clearly electronic surveillance of a person.

V. Technological Safeguards in favor of Carpenter

Carroll v. US 267 US 132 (1925), established what became known as the automobile exception, the court ruled that automobiles can be searched without a warrant if there is probable cause of evidence in the car.  This was coupled with the exigent circumstance that a vehicle could be removed before a warrant was issued.  The mobility of the car established the need for this exception.  The difference in this case is that records remain.  A phone company cannot drive away records, meaning that the police have ample time to obtain a warrant.  On a related note, in Riley v. California 573 U.S._(2014), the phone was not allowed to be searched, in part because police had the ability to keep the cell phone in a faraday bag which protects against remote erasure until a warrant is made.  In a unanimous decision, United States v. Jones 565 US 400 (2012), Justice Antonin Scalia wrote the decision of the court which establishes that the installation of a global positioning system device on Jones’ car was a violation of the fourth amendment based on the trespass of personal property. The court rejected the government’s argument that people do not have any expectation of privacy in a person’s movement in public areas.  Justice Sotomayor also wrote a concurring opinion in Riley which stated that she agreed that the government invaded Jones’ privacy, but also important for when a government intrudes in an area of privacy that people reasonable expect.  She points to the fact that in an era where many forms of surveillance are not physically intrusive.  Sotomayor also mentioned during oral argument “”What motivated the Fourth Amendment historically was the disapproval, the outrage, that our Founding Fathers experienced with general warrants that permitted police indiscriminately to investigate just on the basis of suspicion, not probable cause, and to invade every possession that the individual had in search of a crime.” She then asked, “How is this different?” (Sotomayor).  Today we ask the same question: how is Carpenter different from the fears of the founding fathers.  Bennett Stein, a legal assistant of the American Civil Liberties Union is quoted, “While Jones involved attachment of a GPS device to a car, its reasoning applies with even greater force to cell phone tracking. People carry their cell phones with them all the time. Each time a cell phone makes or receives a call or text message, the wireless provider logs the cell towers the phone connected to during that communication” (Stein).  The poignant words from a defender of civil liberties shows the connection of Jones and Carpenter even though it is not exactly the same legal question.  While the court did determine that planting a radio tracking device did not violate Fourth Amendment rights in United States v. Knotts 460 US 276 (1983), this does not relate to Carpenter.  A radio tracker does not have nearly the same amount of information as a cell phone’s GPS location, and Chief Justice Roberts himself said that using a beeper still took “a lot of work” whereas a GPS device allows the police to “sit back in the station … and push a button whenever they want to find out where the car is.”  The two are not on the same level technologically speaking, and therefore should have different standards for warrantless searches.  While United States v. Karo 468 US 705 (1984) established that a tracking device inserted into a container didn’t constitute as a seizure, the difference between a tracking device and cell phone data is the tracking device only goes to one location, and does not have anywhere near the same amount of information as personal cell phone data, meaning this ruling has no effect on Carpenter.  Arizona v. Gant 556 US 332 (2009) established a search of a vehicle after an arrest was only permissible if the suspect had access to the vehicle at the time of the search or if there was evidence pertinent to the arrest.  Clearly, once he was arrested, Carpenter would have no ability to change his cell phone location data, and therefore a warrantless search of such was not only unnecessary, it was a clear violation of his Fourth Amendment rights.

Proposed Standard

The fourth amendment clearly outlines the need of a warrant that is required in cases such as this one.  Without one, it is evident that the search was unreasonable.  We propose that to gather historical cell site location information, the police need to obtain a warrant which shall be issued upon probable cause.

Conclusion

Timothy Carpenter’s fourth amendment rights were violated.  A search of cell phone records that consisted of a period of 127 days was conducted without a warrant.  The police had the capability of getting a warrant  without fear that their evidence would slip away.  The government intruded into an area in which a reasonable person would have an expectation of privacy.  Allowing a search such as this will lead to a slippery slope, such as tracking someone’s location through their cell phone GPS regardless if they have been suspected of a crime, where governments can easily monitor its people with few, if any, troubles.

Sasadeusz-Wood Harlan Argument

Sasadeusz-Wood Harlan Argument

Petitioner Brief – Sasadeusz & Wood

To be in the Supreme Court of the United States

June Term, 2017

TIMOTHY IVORY CARPENTER, PETITIONER

V.

UNITED STATES OF AMERICA, RESPONDENT

 

PETITIONER’S OPENING BRIEF
Eric Sasadeusz & Connor Wood
Counsel of Record
Lake Oswego High School
Room 213
Lake Oswego, Oregon 97034
(503) 534-2313
Counsel for Petitioner
Oral argument: https://youtu.be/72W1a7lhcwA

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: SEARCH AND SEIZURE……………………………………………………………………… 6.

ARGUMENT II: EXPECTATION OF PRIVACY………………………………………………………………..8.

CONCLUSION…………………………………………………………………………………………………………….. 10.

REFERENCES………………………………………………………………………………………………………………. 11.

TABLE OF AUTHORITIES

 

CASES

Riley V California,

573 US _ (2014)………………………………………………………………………………….. 6,7

 

Boyd V US,

116 U.S. 616 (1886)……………………………………………………………………………… 5,6

 

Ex Parte Jackson,

96 U.S. 727 (1878)……………………………………………………………………………… 5

 

United States v. Jones,

132 S.Ct. 945 (2012)…………………………………………………………………………….. 5, 6, 8

 

United States v. Wurie,

No. 11-1792 (1st Cir. 2013)…………………………………………………………………….. 6

 

Katz V. United States,

389 U.S. 347 (1967)……………………………………………………………………………..8

 

CONSTITUTIONS

U.S. Const. Amend. IV………………………………………………………………………….5,6,7,8,9

 

Const. of the Commonwealth of Massachusetts (Part the First)………….6

 

OTHER AUTHORITIES

 

Final Draft of the Virginia Declaration of Rights

George Mason, The Papers of George Mason, (1776)…………………………..7

 

Stored Communications Act

18 U.S.C. Chapter 121 §§ 2701–2712………………………………………………………..7,9

 

Tesla, Inc. Customer Privacy Policy
Tesla, Inc, www.tesla.com/about/legal…………………………………………………8

 

How Tesla Is Ushering in the Age of the Learning Car

Fortune, fortune.com/2015/10/16/how-tesla-autopilot-learns/……………….8

Writs of Assistance

12 Charles 2 c. 29 (1660)…………………………………………………………………………..6

 

Arguments Against Writs of Assistance

James Otis,(February 1761)……………………………………………………………………..6

 

Amicus Brief to Riley V California, 573 US _ (2014)

Riley v. California (U.S. Sup. Ct.) | Constitutional Accountability Center, 11 July 2014, www.theusconstitution.org/cases/riley-v-california……………………………..7

STATEMENT OF ARGUMENT

 

The fourth amendment’s requirement for a warrant does not allow the government to carry out unreasonable searches and seizures.1  Since the creation of the Constitution, people in America have had a reasonable expectation of privacy in living their everyday lives.  The expectation has been clarified and refined by the Court for years in cases; specifically Ex Parte Jackson,  which held that there must be a warrant for opening letters2, and Boyd V. United States, where it was established that a search is not limited to a physical invasion.3

More recently, United States v. Jones has followed a similar belief in protecting our privacy and holds that the Fourth Amendment offers some protection for trespass via a GPS tracker on cars.  In our case, the Appeals Court has failed to take these property cases into consideration. Furthermore, the search and seizure of data without a judge-issued warrant based on probable cause go against the very foundation of the fourth amendment.5  Carpenter has a high expectation of privacy as he was living his daily life, yet the government was able to obtain data on his whereabouts and associations without a proper warrant.

According to the Fourth Amendment, warrants shall only be issued upon a probable cause supported by an affirmation, as well as a particular description of the place, or persons, being searched or seized.6 Just as letters can’t be opened, as established in Ex Parte Jackson, data must not be accessed as well without an explicit warrant.

ARGUMENT I

 

When the outcomes of other location-tracking cases are considered, the tracking of cell phone data over 127 days constitutes a search.

 

The purpose of the Fourth Amendment is clear: search and seizures must be accompanied by a proper warrant based on probable cause. The founder’s purpose of this amendment was not random. The fourth amendment can be seen as a response to the wide-reaching Writs of Assistance which the British used to search colonial property.7,8 The framers realized that a process for gaining warrants must be fair and just, to ensure protection against unjust government intrusion.

According to the Fourth Amendment, “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.”  Its purpose is clear. Searches and seizures must, in fact, have a specific warrant to be valid.9 A cell phone’s data is no different.

In Riley v. California, phones inherently have a high expectation of privacy, due to the fact that they are microcomputers which hold an entire record of our lives.  Therefore, a warrant is required to search the contents of them.10  Furthermore, the right still applies to those who have been arrested, as held in U.S. v. Wurie, where the Supreme Court unanimously held that a cell phone search of an arrested suspect must have a warrant as well.11 The world has changed since the late 1700’s.  Phones are practically essential in living day to day lives and as such, it is important to realize the implications of tracking a cell phone.  In our case, the government tracked the location pings of carpenter for a period of 127 days. This tracker monitoring displayed every location of Carpenter for every day.

In addition, the court has ruled in favor of requiring a warrant for searching a suspect’s location as well. In U.S. V Jones, the Supreme Court held that installing a GPS tracker on a vehicle without a warrant constitutes an unlawful search. “[L]onger term GPS monitoring in government investigations of most offenses impinges on expectations of privacy.”12 Carpenter was tracked for a period of 127 days. This long-term monitoring by the government would clearly infringe on a reasonable person’s expectations of privacy.

Because of past precedent set in cases U.S v. Jones and Boyd v. U.S, we are led to the conclusion that the tracking of Carpenter’s location is a clear search and therefore subject to the warrant requirement in the Fourth Amendment.  In U.S v. Jones, with the police putting a GPS tracking device on Jones’s car, the Court established that this tracking of location was unconstitutional.  Applying this logic to this case, the tracking of Carpenter’s  location through cell phone pings should be ruled unconstitutional as well.  The Court has also established that a search does not only pertain to physical possessions in Boyd v. U.S.  The data in question in this present case was not physical yet deserves every bit as much protection as a person’s home, property, and effects.13

Defense of unreasonable searches has been understood since the birth of the nation. The Massachusetts Declaration of Rights holds that “Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions.” Therefore, any search of a person must require a warrant.14 In fact, there are more recent laws which back up this claim, even to the digital level. Section b of 18 U.S. Code S2703  states that “A governmental entity may require a provider of remote computing service to disclose the contents of any wire or electronic communication…without required notice to the subscriber or customer, if the governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure.”15

Keeping in mind these previous rulings, there is no question that the tracking of cell phone data constitutes a search. In the 21st century age, laws must adapt to new technologies. In our modern era, our phones and emails are yesterday’s papers and effects. Allowing the warrantless search of location is a dangerous step away from the vision of the founders. In the Constitutional Accountability Center amicus brief  to Riley V California, “The framers wanted to strip the government of the arbitrary power to rifle through a person’s belongings in the hope of finding something incriminating.”16 The search of cell phone location without a warrant is the opposite view of the founders. In this era, cell phones have adapted to become a part of our lives. From calendars, to messages, and to addresses, our cell phones have essentially become a digital version of ourselves. It only makes sense that a search of cell phone location must require a warrant to be issued.  Police should have the option of searching through cell phone location pings, but they must undoubtedly have a warrant to do so.  Being that this was a search, under the Stored Communications Act, the police must be required to receive a warrant to obtain the location data of Carpenter’s cell phone over the course of 127 days. 17

Furthermore, the circumstances under which the police conducted this search would not have been able to obtain a warrant.  Searching the location of a cell phone over the course of 127 days is incredibly general, and not “particularly describing the place to be searched.”18  The police also did not have sufficient evidence of an act being committed by Carpenter in these several locations over the course of over 3 months.  All of these fit into the objections to a warrant made in the Virginia Declaration of Rights.  Written by George Mason, the declaration states that in order for a warrant to be granted, the person and effects in question should be specific and particularly described.  If everything is not specifically described, the warrant should be deemed “grievous and oppressive” and should not be granted.19  Under this logic, even if the police went to a judge to obtain a search warrant to look at the general whereabouts of Carpenter, the police would not have been granted one, making this invasive search even more obviously unconstitutional.

Through analysis of the Fourth amendment, supplemented with older and recent rulings, it is clear that the tracking a cell phone over 127 days was a search without a proper warrant.

 

Argument 2

 

Considering the prevalence of cell phone use in modern life, Carpenter had a reasonable expectation of privacy.

 

Phones have become an integral part of our lives.  Most times, we are required to carry one in order to keep a job and simply live our daily lives.  We are required to sign contracts whenever we buy a cell phone and a cell phone plan which include several different clauses regarding privacy.  Agreeing to these clauses is required to have a working cell phone yet this decision is made reluctantly, as we may not agree with the clauses presented.  We are therefore unwillingly agreeing to a certain clause in these contracts which says that the cell phone company will provide certain location data in order to cooperate with the police.  To do this, the police must first receive a court order.  The police in this case were able to obtain a court order and Carpenter’s cell provider handed over the information.

In Katz v. United States, the Court established privacy regarding telephones.  In this case, the police placed an eavesdropping device on a telephone that Katz used.  The Court established that listening on a telephone call without a warrant violated the Fourth Amendment.20  It stated that the Fourth Amendment does not only include physical effects but conversations and, more generally, phones.

Previous appellate courts have failed to recognize how the terms of privacy have changed through the modern age.  Given that phones are now necessary in conducting a regular daily life and in order to have a working phone we must agree to the cell phone provider’s contract, we are therefore unwillingly providing our private information to the companies.  By doing so, we are apparently left unprotected as the police can simply defend a warrantless search using the Third Party Doctrine.  We must consider that since the world has developed technologically, there are more protections needed in order to live our daily lives securely under the Fourth Amendment.

It has also been established that in living our day to day lives, we have a high expectation of privacy.  This reasoning comes from the case United States v. Jones.  Jones had been living his daily life, using his car to get around, unaware that the police had put a GPS tracker on his vehicle.  The Court ruled in this case that the 24/7 warrantless monitoring was unconstitutional under the Fourth Amendment.21  This case has incredibly similar qualities to that of U.S v. Jones.  Carpenter was unaware he was being tracked, was living his daily life, and the police never obtained a valid warrant to get this information.  We argue that the phone should be considered similar to Jones’s car as both are necessary for living day to day lives in today’s world.  Using the argument that cell phone data is willingly supplied to the cell phone provider can be applied to cars as well.  Tesla uses location data to track their cars today.  Using the argument in U.S v. Jones, this data should be protected from government surveillance under the Fourth Amendment, therefore we must see the similarities, and apparent legal contradiction between this protected Tesla data, and the supposed unprotected phone data for Carpenter.22,23

CONCLUSION

 

In short, the tracking of a cell phone ping over a period of 127 days is a search. As described by the Fourth Amendment, a warrant must be based upon probable cause, along with a specific identification of the place or person being searched. In this case, Carpenter was the specific target of the search. US V Jones requires federal agents to receive a warrant when tracking a car. Point A of paragraph C of the Stored Communications act states that governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service only when a governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure.

Indeed, searches and seizures require a warrant, and Carpenter had an expectation of privacy.  As we have stated, phones are essentially a physical part of ourselves.  Without them, it is impossible to live a complete and productive life in this day and age.  The same way we require cars to live our lives, phones have the same necessity and should, therefore, have the same protections.  Precedent has ruled that the government must receive a warrant to track vehicles via GPS, and cars are as essential in our lives as our phones.  It only makes sense that Carpenter  had such a high expectation of privacy that the government should have been required to have a warrant to track his location.  Given all the similarities in the facts of this case to previous precedent-setting cases in the Court’s history, it is clear that this search is a violation of the Fourth Amendment.

REFERENCES

  1. U.S. Const. Amend. IV.

  2. Ex Parte Jackson, 96 U.S. 727 (1878)

  3. Boyd V US, 116 U.S. 616 (1886)

  4. United States v. Jones, 132 S.Ct. 945 (2012)

  5. U.S. Const. Amend. IV.

  6. U.S. Const. Amend. IV.

  7. Writs of Assistance, 12 Charles 2 c. 29 (1660)

  8. Arguments Against Writs of Assistance, James Otis,(February 1761)

  9. U.S. Const. Amend. IV.

  10. Riley V California, 573 US _ (2014)

  11. United States v. Wurie, No. 11-1792 (1st Cir. 2013)

  12. United States v. Jones, 132 S.Ct. 945 (2012)

  13. Boyd V US, 116 U.S. 616 (1886)

  14. Const. of the Commonwealth of Massachusetts (Part the First)

  15. Stored Communications Act, 18 U.S.C. Chapter 121 §§ 2701–2712

  16. Amicus Brief to Riley V California, 573 US _ (2014)

  17. Stored Communications Act, 18 U.S.C. Chapter 121 §§ 2701–2712

  18. U.S. Const. Amend. IV.

  19. Final Draft of the Virginia Declaration of Rights (1776)

  20. Katz V. United States,389 U.S. 347 (1967)

  21. United States v. Jones, 132 S.Ct. 945 (2012)

  22. Tesla, Inc. Customer Privacy Policy

  23. How Tesla Is Ushering in the Age of the Learning Car

Harlan Virtual Supreme Court: Carpenter v. US-GhaneaBassiri and Sahni

IN THE SUPREME COURT OF

THE STATE OF THE UNITED STATES

—————–

TIMOTHY IVORY CARPENTER,

 Petitioner

vs.

UNITED STATES OF AMERICA ,

Respondent

———————————————————————

———————————————————————

Brief for Respondent

Kamala GhaneaBassiri & Juliana Sahni

Video Link:

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….…………………………………………………………………5

Table Of Authorities ……..……………………………………………………………4

Statement of Argument…………………………………………………………….. 5

Argument……………………………………………………..………………………… 6

Conclusion………………………………………………………………….……………9

TABLE OF AUTHORITIES

Cases:

Katz. v. United States, 389 U.S. 347 (1967)………………………………………………………..7

United States v. Miller, 425 U.S. 435, 443 (1976)……………………………………………….365

United States v. Jones, 565 U.S. 400 (2012)……………………………………………………..3,4

Smith v. Maryland 442 U.S. 735 (1979)…………………………………………………………………..3,5,6

Ex parte Jackson, 96 U.S. 727 (1878)……………………………………………………………………..4,6

Statement Of Argument

The warrantless search and seizure of cell phone records, which include location data, over the course of 127 days does not violate the Fourth Amendment. United States v. Miller and Smith v. Maryland have established the Third Party Doctrine, stating that one has essentially no expectation of privacy for information he or she voluntarily provides third parties. Cell phone records, and more specifically location data of a cell phone, fall under the category of third party information. United States v. Jones set the precedent that “long term GPS monitoring” is an infringement of one’s privacy, however in Carpenter’s case the FBI was not monitoring present actions, instead they were reviewing his past cell phone history to find out where he was during the time of the robberies. Furthermore the acquisition of cell phone records is permitted under the Stored Communications Act. The Stored Communications Act states, “A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation” (Stored Communications Act), establishing the standard of proof for these records to be “specific and articulable facts” as opposed to probable cause. In the case of Carpenter v. United States, the FBI met this standard given that their information involving Timothy Carpenter was offered by an individual arrested for the same armed robberies Carpenter was also involved in. This combined with a reasonably low expectation of privacy surrounding cell phone works to support the United States government’s position in this case. Carpenter had almost no expectation of privacy surrounding his phone data from the moment he purchased his cell phone, and the FBI met the standard of proof required to search his records. Therefore, the warrantless search and seizure of cell phone records does not violate the Fourth Amendment.

Argument

  1. Locational information from cell phones does not have a reasonable expectation of privacy

Everyone loves privacy, however, they perhaps knowingly and unknowingly give up their right to privacy in many different ways. With the emergence of hand-held technology has come a lower expectation of privacy. With social media outlets such as Instagram and Snapchat, geotagging and location sharing services have become the norm. All of these apps ask permission from the owner of the smartphone before using his or her location, and most people willingly consent to this tracking.The widespread use of these applications and other location sharing devices shows a common understanding that one’s expectation to privacy has been significantly lowered. The invention of the internet, and more specifically social media, has created a culture based on sharing. We share pictures, videos, thoughts, and along with these, our locations on social media. The fact that we so easily consent to being tracked on our cell phones demonstrates how one’s location is not being treated like an extremely private matter anymore. Even services that we often often overlook because they are deemed necessary, like emergency location services and ambulances, can track and locate people based on telephone data. The current standard of proof for obtaining cell phone records is “specific and articulable facts” showing that the information provided in the cell phone data is relevant to an ongoing investigation. Because there is such a low expectation of privacy, there is no reason to have a higher standard of proof such as probable cause to obtain this information.

II. The information provided by cell phone records is not specific enough to be considered an unreasonable search and seizure

The location services used by smartphones to track one’s location work through a combination of wi-fi, cell site data, Bluetooth, and GPS technology. This combination of technology allows for more specific location information that is found in apps such as Snapchat or Find My Friends. Information from just cell site data alone, however, does not provide the same location specificity of a tracking app such as “Find My Friends”.  In the case of Carpenter v. U.S., the U.S. government gathered data from cell phone towers about the location of Carpenter in order to reveal any correlation between him and various armed robberies. United States v. Jones has already established that unwarranted 24/7 GPS tracking is a violation of Fourth Amendment rights. Cell phone records like the ones used in Carpenter v. United States do not contain the same specific location data that a GPS tracking device would provide. Cell phone records contain cell site information, which only shows the “pings” of a person’s cell phone at the nearest cell tower. Cell site information by itself is specific enough to determine a person’s actual location–in many circumstances the closest cell tower can be more than five miles away from the phone. Because cell site information is so general, even 911 wireless services rarely use cell site information to locate a cell phone call due to the fact that it is not useful for tracking a person. This data is simply a part of the necessary information cellular providers need to do their job.

In the Ex Parte Jackson ruling, the Supreme Court held that the government needed a search warrant to open letters and packages, but not to use the “outward form and weight” of those materials, including the name and address of the recipient”. (733) The United States government, similarly looked at the “outward form and weight” of the location data that they were collecting and thus did not violate the Fourth Amendment. The government never read or listened to Carpenter’s messages. Instead, the broad scope in which they gathered information about Carpenter was enough to convict him but not enough to violate his right to privacy.

There is an important distinction to be made between the information the government gathered versus accusatory claims that suggest that the government’s actions were synonymous with GPS tracking. The United States government simply uncovered cell cite information rather than GPS tracking. GPS tracking would indeed easily be an invasion of privacy because it reveals too much about one’s personal life. Cell cite information only revealed the general location of Carpenter and his in relation to the Radio Shacks that were robbed. None of this reveals the sort of  personal  information that would require a warrant.

We can look to the Fourth Amendment to understand our protections against searches, and unwarranted physical searches. We cannot, however, look back on the words from The Federalist Papers or the New York Ratification Debates and Proceedings and expect to find the answer to a question about the use of cellular devices. In the context of these writing, they cannot give us much guidance because the technological advances we are discussing now were not in the picture then. Rather than attempting to solve this debate with an originalist lens, it is vital that we instead examine past precedents in the context of the technology used to determine whether there was a reasonable expectation privacy.

In United States v. Miller, Mitch Miller, the defendant, was accused and convicted of the possession of equipment to distill alcohol and bootleg alcohol. As part of the investigation into Miller’s guilt or innocence, the Bureau of Alcohol, Tobacco and Firearms subpoenaed Miller’s bank records to find evidence of purchases of such equipment described above. Miller attempted to appeal his conviction on the premise of his Fourth Amendment rights being violated. He based his argument on the ruling of Katz v. United States, that said “we have . . . departed from the narrow view…[that]property interests control the right of the Government to search and seize” and that unreasonable search and seizures can occur when the government infringes on “the privacy upon which [a person] justifiably rely[s]”. The Supreme Court, however, ruled in favor of the United States government, reasoning that Miller did not have a reasonable expectation of privacy because the information obtained were found in business records that involved a third party. The Court argued that there was no legitimate expectation of privacy in the contents of the bank records; checks are not private communications, they are means of conducting business and commercial transactions. In United States v. Miller began to establish that documentation given to third parties are no longer private matters, which would later be reinforced in Smith v. Maryland. This precedent is relevant to the case of Carpenter v. U.S. because cell site records function like business records in that they are voluntarily shared with a third party, the cell provider.

In the case of Smith v. Maryland, the government used phone call records to solve a case. After Michael Lee Smith robbed a woman, he began to make threatening phone calls to her, and even drove by her house once. They then got in contact with the phone company to receive data about the various numbers the suspect dialed on his own phone. After seeing the numbers Smith dialed, they were able to conclude that he was indeed the man harassing the victim, he was arrested and convicted. Smith believed the use of phone records was a violation of his Fourth Amendment rights, but the Supreme Court ruled against him, saying the reasonable expectation of privacy does not apply to phone call records. Phone numbers are recorded and used in the regular conduct of a phone company’s business, and they are voluntarily shared with third parties. Therefore, the court ruled that telephone numbers given to third parties are not protected by the Fourth Amendment. The Supreme Court explained their ruling, saying, “Although [the caller’s] conduct may have been calculated to keep the contents of his conversation private, his conduct was not and could not have been calculated to preserve the privacy of the number he dialed”. This same reasoning applies to the use of cell site data. It is information necessary for telephone companies to conduct business and convey information, and is data that is voluntarily shared with third parties. There is no reasonable expectation of privacy pertaining to cell site data, and therefore the Fourth Amendment protections against unlawful search and seizure do not apply to Timothy Carpenter’s case.

Conclusion

The the warrantless search and seizure of cell phone records including location data over the course of 127 days is not a violation of Fourth Amendment rights. Cell site data is not protected by the Fourth Amendments rights against search and seizure. It is third party information that is necessary for conducting business. Furthermore, locational information from cell phones has an extremely low expectation of privacy, and the cell site data attained for investigation is far too general to be considered the search of a person. We ask the Supreme Court to uphold the precedents set in Smith v. Maryland, United States v. Miller, and Ex Parte Jackson when considering Carpenter’s case and side with the ruling of the U.S. Court of Appeals for the Sixth Circuit.

Harlan Virtual Supreme Court: Carpenter v. US- Heavey and Liu

https://www.youtube.com/watch?v=3cH1uXpMzqw

Petitioner Brief – Liu and Heavey

 

To be in the Supreme Court of the United States

October Term, 2017

 

TIMOTHY IVORY CARPENTER, PETITIONER

V.

UNITED STATES OF AMERICA, RESPONDENT

 

PETITIONER’S OPENING BRIEF

 

Nicholas Liu & James Heavey

 

Counsel of Record

Oral Argument: https://www.youtube.com/watch?v=3cH1uXpMzqw

Greenwich High School

 

Room 528

 

Greenwich Connecticut, 06830

(203) 625-8000

 

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 1: Requirement of a Warrant  . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   5

 

Argument 2: Fourth Amendment Doctrines . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

 

Argument 3: Property and Privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

 

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

 

Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  13

 

Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  14

TABLE OF AUTHORITIES

Cases

Brinegar v. United States, 338 U.S. 160 (1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..6

Katz v. United States, 389 U.S. 347 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 12

Miller v. United States, 425 U.S. 435 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5, 8

Smith v. Maryland, 442 U.S. 735 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Terry v. Ohio, 392 U.S. 1 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

United States v. Jones, 565 U.S. 400 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . .  . . .5,6,7,10,11,12

United States v. Knotts, 460 U.S. 276 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

 

Constitutions

U.S. Const. amend. I – X.   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

U.S. Const. amend. IV, cl. 1.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5,6

U.S. Const. amend. IV, cl. 2.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,6,7,11

 

Other Authorities

 

Bedi, Monu. “The Curious Case of Cell Phone Location Data: Fourth Amendment

    Doctrine Mash-Up.” Northwestern Law Review 110 (2015): 64-67. Accessed

    February 20, 2018. https://scholarlycommons.law.northwestern.edu/cgi/

    viewcontent.cgi?article=1231&context=nulr_online. ………………………………8,9

 

Brief of Amici Curiae Empirical Fourth Amendment Scholars in Support of Petitioner, Sarah

O’Rourke Schrup, Jeffrey T. Green………………………………………………8

 

Brief of Amicus Curiae Restore the Fourth, Inc. in Support of Petitioner, Mahesha P.

Subbaraman……………………………………………………………………..8,9,11

 

Brief For Technology Companies As Amici Curiae In Support Of Neither Party, Carpenter v.

United States ……………………………………………………….…………..5,9,10,11

 

Carter, Chelsea J. “Where (and when) do you use your smartphone?” CNN. July 13, 2013.

Accessed February 19, 2018. https://www.cnn.com/2013/07/13/tech/smartphone-use-survey/index.html……10

 

Clancy, Thomas K. “The Framers’ Intent: John Adams, His Era, and the Fourth Amendment.”

Indiana Law Journal 86:979. Accessed February 19, 2018. http://ilj.law.indiana.edu/articles/86/86_3_Clancy.pdf. ………………………5,11

 

Mason, George. “Final Draft of the Virginia Declaration of Rights.” June 12,

    1776. http://consource.org/document/final-draft-of-the-virginia-declaration-of-rights-1776-6-12/. 6,7,11

 

The Harlan Institute. “Lesson Plan – Carpenter v. United States.” The Harlan Institute.

http://harlaninstitute.org/lesson-plans/…………………………………………..7,11

 

Madison, James. “Bill of Rights as Proposed.” March 4, 1789.

http://consource.org/document/bill-of-rights-as-proposed/#1…………………….5,11

 

Stored Communications Act, 18 U.S.C. § 2703. http://harlaninstitute.org/

    lesson-plans/lesson-plan-carpenter-v-united-states/. ………………………………….5,6,11

 

Transcript of Oral Argument at 11, Carpenter v. US………………………………………8,9

U-s-history.com. “Writs of Assistance.” United States History.

http://www.u-s-history.com/pages/h1205.html. …………………………………..5

 

US Legal. “Warrant Clause Law and Legal Definition.” US Legal.

            https://definitions.uslegal.com/w/warrant-clause/. ……………………………….5

 

Wireless Communications and Public Safety Act of 1999. Pub. L. 106-81. October 1999.

legcounsel.house.gov. Web. 19 Feb. 2018…………………………………………………10,12

Statement of Argument:  Collection of cellphone data from Timothy Carpenter’s cellphone is in violation of the Fourth Amendment.  The Stored Communications Act, 18 U.S.C. § 2703(d),1 was used to circumvent the Fourth Amendment’s requirement for a warrant.2  The scope of the search was excessive.  Also, the addition of the Cell Site Location Information violated the precedent set forth in United States v. Jones.3  Furthermore, the third party doctrine as set forth in United States v. Miller,4 does not apply in this context.  The user of a cell phone is not consciously turning over their CSLI, to the service provider, public or government, because it is an inevitable part of communication in the digital age, with digital data “automatically transmitted and processed by different computer software and servers.”5  This case also shows the connection between the Constitution and modern technological changes.  Under the privacy interpretation of the Fourth Amendment, cellphone data is a type of information that the sender still has a vetted privacy interest in despite transmitting it.  Also, under the property interpretation of the Fourth Amendment, cell phone data can be viewed as effects, meaning it in protected by the first clause of the Fourth Amendment.6  Between the unreasonable generalness of the information collected, the lack of a warrant, the misuse of the third party doctrine and the evolving complications of the digital age in relation to the Fourth Amendment, the evidence gathered against Mr. Carpenter was done so unconstitutionally.

Arguments

 

  1. The collection of CSLI using the Stored Communications Act, 18 U.S.C. § 2703(d), constitutes a geolocational search, and therefore violates the Fourth Amendment’s requirement for a specific warrant.

 

Even before the United States was independent, there was a requirement for some form of warrant for a search or seizure to occur.  In colonial times, this meant a Writ of Assistance, “court orders that authorized customs officers to conduct general (non-specific) searches of premises for contraband.”7  These writs were widely disliked for their lack of specificity.  A prominent voice against these writs was James Otis.  He described them as instruments of “slavery”8 and “villainy.”9

These sentiments were carried on by James Madison when he wrote the “Bill of Rights as Purposed.”10  This document was later moved into the US Constitution when it was ratified in the Bill of Rights.11  In the 4th amendment, the descendent of the sixth article in the “Bill of Rights as Purposed,”12 there is a clause referred to as the Warrant Clause.13 This clause can be broken into different ideas, each outlined the requirements for a warrant in the US Justice System.

The first idea in this clause is the requirement for “probable cause.”14  This idea is explored in more detail in Brinegar v. US.15  The case states that “Probable cause exists where the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.”16

Another idea stated in the Warrant clause was the requirement of a warrant to particularly described “the place to be searched, and the persons or things to be seized.”17  This directly builds on Otis’ hatred of general warrants and is designed as a check against the ability of the government to search and seize without due process and reasonableness.  With these ideas in mind, one can take a closer look at Carpenter v. US.

Firstly, the Federal Bureau of Investigation needed to apply for a warrant in order to search the CSLI from Mr. Carpenter.  This is action is established as a search as seen with United States v. Jones,18 where tracking one’s location is considered a violation of the fourth amendment.  Now while the tracking performed in Carpenter v. United States is less accurate than that done in United States v. Jones it remains a form of location tracking that may not have been able to be done by normal police officers.  For example, the petitioner may have been in private property in the two mile radius so there would otherwise not have been surveillance on him.  Since the government did track Carpenter’s location and that is considered a search, a warrant would be required for it to be carried out legally.

This said, the FBI did not apply for a warrant but rather a court order under the Stored Communications Act, 18 U.S.C. § 2703(d).19  There are clear differences in the requirements set forth in the SCA and the Fourth Amendment.  The SCA requires the government to provide “specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.“20  This is a bar much lower than that set by James Madison and John Adams, “probable cause.”21  This, defined by Brinegar,22 requires “facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.”23  This is significantly different as the SCA does not require the party being searched to be committing a crime but rather have information that may help an investigation.  This collection of information without a warrant or even probable cause shows that the petitioner’s Fourth Amendment Rights are being violated.

Another issue with the way this was executed is the amount of data collected.  Instead of collecting data that was solely pertinent to the exact times of the robberies or even the days that they occured, the FBI collected all transactional data over the course of 127 days. This lengthy extent of data collection is in violation of the Fourth Amendment’s24 requirement for particularly described places.  Historically, Americans have always been against general searches like this, as seen with Otis and even George Mason who is quoted saying “[G]eneral warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.”25 This quote is very important as it dives into the flaws in this data collection.  The CSLI was collected without an offence being “particularly described and supported by evidence.”26  This sort of wide-net, far-reaching, open-ending searching is the exact thing the founding fathers stood against and would call “grievous and oppressive.”27

Another error in the collection of the 127 days28 of data by the FBI is the situation surrounding it.  If the FBI had time sensitive information that they could have used to protect the safety of the public or a law enforcement officer, there would be more lenciency as far the strict requirement for a warrant. But, the long duration violates every exception to a warrant, specifically the precedent of “Terry Stops.”29 which allows a “searches undertaken, (…)limited in scope and designed to protect the officer’s safety incident to the investigation.”30  This search was neither limited in scope nor to protect the safety of a law enforcement officer.  This shows once more that the FBI’s disregard for the requirement for a warrant cannot be excused under one of the exceptions.

In summation, the FBI would have needed a warrant to receive the information that they did.  As it is location tracking, it is protected by the Fourth Amendment, as seen in United States v. Jones,31 meaning a warrant would be required.  Instead of a warrant, the FBI opted to use the SCA to receive a court order that was not based on probable cause and was not finely tailored.  This “general warrant” is unconstitutional and starkly opposed to the Fourth Amendment of the Constitution of the United States of America.32

2. The third party doctrine and public disclosure doctrine carry little relevance to Carpenter v. US based upon the conditions set forth in both Smith v. Maryland and US v. Miller, and their continuous application is unsuitable for the digital age.

In Smith v. Maryland, the third party doctrine was established so that,  “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”33 The relevance of this doctrine to Carpenter is a mixed bag — on one hand, Carpenter’s CSLI data was extracted from the third party cell service companies, but on the other, he had little to no control over the forfeiture of the data to the provider. The nature of mobile technology is that sensitive data, including one’s location, or call and text records, are automatically transferred to such service providers to be processed by the company’s servers and software.34 The transmission of the data is a necessary part of participating in the digital world, and is a basic requirement for modern communication. As such, it is irresponsible to haphazardly apply the third party doctrine with such a rigid expectation of validity, especially in the digital age.

First, Smith’s definition of the third party doctrine conflicts with the facts of the case of Carpenter. The idea that data so unknowingly transmitted such as CSLI can be regarded as voluntary relinquishment of information is a stretch of the original meaning of the doctrine. The origins of the doctrine trace back to the use of government informants “eliciting incriminating statements from unwary criminal suspects”, under the premise that once the suspect has voluntarily spoken the statements to the informant, the government can and will use the information against him without a warrant.35 But this application of the doctrine has dramatically expanded over time, extending to the voluntary disclosures made by a user to banks or telephone companies. The fine line between voluntary and coerced disclosure of information to the company is one that should be examined. Some examples of voluntary actions in the context of cell phone usage would be typing in a phone number, making a phone call, or making a search on the internet. Unlike these actions, which are clearly voluntary, the automatic transmission of sensitive data to the cell providers would not be voluntary,

The relational nature of privacy as outlined by Justice Brandeis should also be considered. Essentially, the purpose of the fourth amendment, as envisioned by the Founders, was to shield individuals from actions of the government, no matter the context. Automatically assuming that information revealed to a third party gives total access to the government to that information simply does not advance that purpose.36 Put another way, our willingness to disclose information to one party does not naturally apply to the same extent to another party, as people act with different levels of privacy towards different people. Giving no reasonable expectation of privacy to information disclosed to any third party, even to companies as necessary as cell providers in the digital world, undermines the nature of both the fourth amendment and the American right to personal civil liberties.

The analysis that people who sign up for cell providers knowingly assume the risk that their sensitive information may be turned over to the government is also not so straightforward. First of all, this direct application of the third party doctrine, as seen in the Fifth and Eleventh Circuits, does not meet the same conditions to the Third Party Doctrine as seen in US v. Miller, which takes into account both the sensitivity of the information, the voluntariness of the disclosure, and the scope of the information.37 First of all, the obtaining of Miller’s records were much more limited, and did not have the same degree of sensitivity as location. Furthermore, the records that were created were a “negotiable instrument into the stream of commerce to transfer funds.”38 What is seen in Carpenter is both of much higher sensitivity (CSLI is highly personal) and much less voluntariness. Going back to the original point, that people assume the risk of the betrayal of their sensitive information, a recent study found that only about 1 in 4 Americans “expressed even a general awareness that their cell phone companies may track their locations.”39 It’s clear that in general, most Americans have a reasonable expectation of privacy to their locations, and are not, in fact, voluntarily or consciously aware of the disclosure of their locational information to their cell providers, where its purpose could then be betrayed by the government. Even when that data is transmitted to a service provider, it is an American’s expectation that that does not automatically preclude all protection to digital data, which is what the third party doctrine’s “all or nothing” function seems to suggest, where once information is exposed in any extent to any member of the public, it becomes instantly accessible to any member, including the government.40

Another doctrine being related to Carpenter is the public disclosure doctrine, which, similar to the third party doctrine, relates to the same idea — that a voluntary action made by an individual may be used against them. This doctrine relates to the idea that a reasonable expectation of privacy is forfeited when a person makes public movements susceptible to visual observation.41 But, like the third party doctrine, it bears little relevance to the circumstances in Carpenter. The key with the public disclosure doctrine is that the police only monitor public movements, as seen in United States v. Knotts, where the police planted a beeper on a suspect’s belonging to follow him to his final location.42 But the access to the CSLI of Carpenter in the fourth month time span did not monitor only public movements because he could not have been continuously susceptible to public observation during that period. An even more critical distinction is that Knotts suggested the necessity of a different conclusion if the search lasted for a day or longer.43 While precedent has yet to draw a bright line (whether that be 24 hours, or 6 hours, as determined by the Massachusetts Supreme Court44)  between short and long term searches, it can easily be assumed that the four month access to Carpenter’s location was not limited to a reasonable time period and therefore does not exempt fourth amendment protection.

Considering the irrelevance and ill-suited applications of these two doctrines to Carpenter, law enforcement’s warrantless searches of Carpenter should not be immune from constitutional scrutiny. The factors of sensitivity, length, and discretion involved in Carpenter’s location data deem the third party and public disclosure doctrines as having little relevance or applicability to the case. In a more general sense, the Court should be wary of both of these doctrines as they apply to the digital age, where increasingly detailed and sensitive information stored on Americans’ cellphones are prone to governmental access. The two doctrines lose aspects of their original meaning when hastily enforced upon technological information. Most importantly, the American public depends on the expectation that the life they entrust to their digital devices stay private, and not so easily compromised by the government via their cell provider.

3. From both a property and privacy-based interpretation of the Fourth Amendment, the searches of Timothy Carpenter were in violation of the Constitution.

 

The court’s interpretations of the fourth amendment and its accompanying doctrines (third party doctrine, public disclosure doctrine, expectation of privacy), must adapt to the realities of a digital world. As cellphones and digital data become an integral part of modern society and individual life, the same protections to physical property or information should be extended to new technologies. As the definition of what constitutes a search continues to change, it no longer should be limited to strictly physical intrusions, considering the pervasiveness of technology, and how it is essentially a new form of property. Beyond just being an essential form of property to most Americans, there also comes a high personal expectation of privacy to digital information, as established in Katz v. United States.45 From a privacy-based interpretation to the fourth amendment, the collection of CSLI is routinely collected without user knowledge or consent.46 Furthermore, users often cannot avoid the transmission of such sensitive data to third party cell services, but they still expect that data to remain private.

Analyzing the case from a property-based interpretation, there is explicit evidence in federal statute that classifies cell data as a form of private property. The property right to cell data was first established in Section 222 of the Wireless Communication and Public Safety Act of 1999, which states, “every telecommunications carrier has a duty to protect the confidentiality of proprietary information of, and relating to … customers.”47 The key phrase here is “proprietary information”. As such, CSLI can be interpreted as an “effect” of the individual, and thus, the search of the location information by the government violates the fourth amendment individual property right to the data. This is only made worse by the lack of user discretion previously discussed, in forfeiting the data to the third party, with little to no disclosure of the use of the data. In the same way that US v. Jones made 24/7 GPS tracking illegal because of the physical trespass into the automobile, there is a degree of property right to cell information, especially sensitive information such as location data, which is made an important form of property by federal law.48

In terms of the expectation of privacy analysis of the case, an interpretation set forth in Katz, there is an even more compelling argument for a breach of the fourth amendment. Considering both the omnipresence of cellular devices and digital information, as well as the sensitivity and importance of the data stored electronically in this age, it is hard to doubt that almost every American expects and hopes that the government should not be able to have continuous access to their private information (like their whereabouts). Not only do they expect their digital information to remain private, but they expect that data automatically transmitted to their third party cell providers is not compromised by the government, as outlined in the WCPSA.

The nature of technology in the information age raises concern about a world without a personal expectation of privacy to digital data. First of all, the increasing capability of mobile technology means that collection of CSLI is becoming increasingly detailed and precise.49 As cell phones become a tool for not only communications, having capabilities for photography, email, etc., Americans are carrying cell phones on their persons almost all the time. In fact, one study found that 72% of Americans have their mobile phones within a five-foot reach for the majority of the time.50 As network architecture continues to improve with the ever increasing demands of cell phones, CSLI data is being more constantly collected, and to with greater accuracy. Allowing law enforcement to continue tapping into historic CSLI data, without user knowledge or consent, would effectively becoming a total breach of personal privacy, with location data from every minute of the day being made available to the government. The collection of CSLI data is simply too much of a slippery slope, and it is to every American’s interest to have such data remain private. Considering the nature of CSLI collection technology, law enforcement would soon be able to have the ability to track individuals not only in places where it would be uneconomical or inconvenient to do so, but also to have the ability to track them in places where it would otherwise be impossible, such as within one’s home, a form of physical property which is of the highest degree of expectation of privacy.51 The tracking of Carpenter’s locations over 127 days encompassed both public and private property, and the government inappropriately had the ability to know his location even in places such as his home. Even considering the argument that tracking Carpenter in public would be allowed as he is an exposed individual to plain sight is not entirely valid, because the idea that being exposed to some member of public society forfeits your privacy to any member of society, including law enforcement, is analogous to an extreme and rigid application of the third party doctrine, as discussed previously.

There are significant reasons from both a property and privacy-based approach to the fourth amendment that the long term surveillance of Timothy Carpenter constituted a breach of the fourth amendment. Not only is the CSLI data stored in the servers of third party cell providers a form of personal property, aligning with the Jones decision, but also from a Katz perspective, society has a basic expectation of privacy of their movements over long periods of time. The Court must be able to protect Americans against the increasingly revealing nature of CSLI, and prevent society from becoming essentially a police state, with law enforcement given far too much power over the free will of the people.52

CONCLUSION

 

In short, Mr. Carpenter’s Fourth Amendment53 rights were violated.  There was a warrantless search of his cellphone data including his cell site location information which was unreasonable and was not limited in scope.54

Firstly, the acquirement of such records under the Stored Communications Act55 attempts to replace the “probable cause”56 requirement for a warrant.  Furthermore, the records collected were extremely general, covering a span of 127 days of data, including vague location data and other transaction information, for 16 separate phone numbers.57 This lack of specificity is exactly what was feared by the political minds who helped write the Constitution, including Otis,58 Adams,59 Mason60 and Madison.61  There was not even a direct public safety threat that could have excused the requirement for a warrant.  Essentially, there is no excuse as to why there wasn’t a warrant to receive this sensitive private information.

The application of the third party doctrine and public disclosure doctrine to the circumstances in Carpenter is inappropriate, because of the uniqueness of the digital age. Not only is CSLI data becoming increasingly more accurate and revealing, but Americans are investing more of their sensitive information and effectively their entire lives into their mobile devices. Access to the information by the government via cell service providers should not be classified as an exception to the fourth amendment under the premise that the location data is voluntarily disclosed and that all risk is assumed. In fact, data shows that Americans are largely unaware of both of these factors.

The property and privacy-based interpretations of the fourth amendment, as developed in Jones62 and Katz63 both fit under the contours of Carpenter, and Carpenter’s fourth amendment protections should not be forgoed. Carefully considering the nature of technology, and how current federal statutes classify it, technological data sent to service providers is regarded as “proprietary”,64 and should be of highest importance. There is an obligation by the cell providers to protect this form of property of the end user, and the government should respect that property right. The most important interpretation towards Carpenter however, is the reasonable expectation of privacy that comes with digital information. It is guaranteed that nearly all Americans would hope that their sensitive information should not be able to be accessed by the government, simply because it requires transmission to a third party. Allowing CSLI data to be collected without a warrant would directly undermine the goals of the Founders, who designed the fourth amendment to protect Americans’ right to be let alone.

ENDNOTES

1 Stored Communications Act, 18 U.S.C. § 2703. http://harlaninstitute.org/lesson-plans/lesson-plan-carpenter-v-united-states/.

2 U.S. Const. amend. IV, cl. 2. http://www.billofrightsinstitute.org/founding-documents/bill-of-rights/.

3 United States v. Jones, 565 U.S. 400 (2012)

4 United States v. Miller, 425 U.S. 435 (1976)

5 Brief For Technology Companies As Amici Curiae In Support Of Neither Party, Carpenter v. United States

6 U.S. Const. amend. IV, cl. 1. http://www.billofrightsinstitute.org/founding-documents/bill-of-rights/.

7 U-s-history.com. “Writs of Assistance.” United States History.  http://www.u-s-history.com/pages/h1205.html.

8 Clancy, Thomas K. “The Framers’ Intent: John Adams, His Era, and the Fourth Amendment.” Indiana Law Journal 86:979. Accessed February 19, 2018.http://ilj.law.indiana.edu/articles/86/86_3_Clancy.pdf.

9 Clancy, Thomas K. “The Framers’ Intent: John Adams, His Era, and the Fourth Amendment.” Indiana Law Journal 86:979. Accessed February 19, 2018.http://ilj.law.indiana.edu/articles/86/86_3_Clancy.pdf.

10 Madison, James. “Bill of Rights as Proposed.” March 4, 1789. http://consource.org/document/bill-of-rights-as-proposed/#1

11 U.S. Const. amend. I – X. http://www.billofrightsinstitute.org/founding-documents/bill-of-rights/.

12 Madison, James. “Bill of Rights as Proposed.” March 4, 1789. http://consource.org/document/bill-of-rights-as-proposed/#1

13 US Legal. “Warrant Clause Law and Legal Definition.” US Legal. https://definitions.uslegal.com/w/warrant-clause/.

14 U.S. Const. amend. IV, cl. 2. http://www.billofrightsinstitute.org/founding-documents/bill-of-rights/.

15 Brinegar v. United States, 338 U.S. 160 (1949)

16 Brinegar v. United States, 338 U.S. 160 (1949)

17 U.S. Const. amend. IV, cl. 2. http://www.billofrightsinstitute.org/founding-documents/bill-of-rights/.

18 United States v. Jones, 565 U.S. 400 (2012)

19 Stored Communications Act, 18 U.S.C. § 2703.

20 Stored Communications Act, 18 U.S.C. § 2703.

21 U.S. Const. amend. IV, cl. 1. http://www.billofrightsinstitute.org/founding-documents/bill-of-rights/.

22 Brinegar v. United States, 338 U.S. 160 (1949)

23 Brinegar v. United States, 338 U.S. 160 (1949)

24 U.S. Const. amend. IV, cl. 2. http://www.billofrightsinstitute.org/ founding-documents/bill-of-rights/.

25 Mason, George. “Final Draft of the Virginia Declaration of Rights.” June 12, 1776. http://consource.org/document/final-draft-of-the-virginia-declaration-of-rights-1776-6-12/.

26 Mason, George. “Final Draft of the Virginia Declaration of Rights.” June 12, 1776. http://consource.org/document/final-draft-of-the-virginia-declaration-of-rights-1776-6-12/.

27 Mason, George. “Final Draft of the Virginia Declaration of Rights.” June 12, 1776. http://consource.org/document/final-draft-of-the-virginia-declaration-of-rights-1776-6-12/.

28 The Harlan Institute. “Lesson Plan – Carpenter v. United States.” The Harlan Institute. http://harlaninstitute.org/lesson-plans/lesson-plan-carpenter-v-united-states/.

29 Terry v. Ohio, 392 U.S. 1 (1968)

30 Terry v. Ohio, 392 U.S. 1 (1968)

31 United States v. Jones, 565 U.S. 400 (2012)

32 U.S. Const. amend. IV.  http://www.billofrightsinstitute.org/founding-documents/bill-of-rights/.

33 Smith v. Maryland, 442 U.S. 735 (1979)

34 Brief For Technology Companies As Amici Curiae In Support Of Neither Party, Carpenter v. United States

35 Monu Bedi. “The Curious Case of Cell Phone Location Data: Fourth Amendment Doctrine Mash-Up.”

36 Brief of Amicus Curiae Restore the Fourth, Inc. in Support of Petitioner, Mahesha P. Subbaraman.

37 United States v. Miller, 425 U.S. 435 (1976)

38 Transcript of Oral Argument at 11, Carpenter v. US

39 Brief of Amici Curiae Empirical Fourth Amendment Scholars in Support of Petitioner, Sarah  O’Rourke Schrup, Jeffrey T. Green.

40 Brief of Amicus Curiae Restore the Fourth, Inc. in Support of Petitioner, Mahesha P. Subbaraman.

41 Monu Bedi. “The Curious Case of Cell Phone Location Data: Fourth Amendment Doctrine Mash-Up.”

42 United States v. Knotts, 460 U.S. 276 (1983)

43 Monu Bedi. “The Curious Case of Cell Phone Location Data: Fourth Amendment Doctrine Mash-Up.”

44 Transcript of Oral Argument at 11, Carpenter v. US

45 Katz v. United States, 389 U.S. 347 (1967)

46 Brief For Technology Companies As Amici Curiae In Support Of Neither Party, Carpenter v. United States

47 Wireless Communications and Public Safety Act of 1999.

48 United States v. Jones, 565 U.S. 400 (2012)

49 Brief For Technology Companies As Amici Curiae In Support Of Neither Party, Carpenter v. United States

50 Chelsea J. Carter. “Where (and when) do you use your smartphone?”

51 Brief For Technology Companies As Amici Curiae In Support Of Neither Party, Carpenter v. United States

52 Brief of Amicus Curiae Restore the Fourth, Inc. in Support of Petitioner, Mahesha P. Subbaraman.

53 U.S. Const. amend. IV.  http://www.billofrightsinstitute.org/founding-documents/bill-of-rights/.

54 U.S. Const. amend. IV.  http://www.billofrightsinstitute.org/founding-documents/bill-of-rights/.

55 Stored Communications Act, 18 U.S.C. § 2703.

56 U.S. Const. amend. IV, cl. 2. http://www.billofrightsinstitute.org/founding-documents/bill-of-rights/.

57 The Harlan Institute. “Lesson Plan – Carpenter v. United States.” The Harlan Institute. http://harlaninstitute.org/lesson-plans/lesson-plan-carpenter-v-united-states/.

58 Clancy, Thomas K. “The Framers’ Intent: John Adams, His Era, and the Fourth Amendment.” Indiana Law Journal 86:979. Accessed February 19, 2018.http://ilj.law.indiana.edu/articles/86/86_3_Clancy.pdf.

59 Clancy, Thomas K. “The Framers’ Intent: John Adams, His Era, and the Fourth Amendment.” Indiana Law Journal 86:979. Accessed February 19, 2018.http://ilj.law.indiana.edu/articles/86/86_3_Clancy.pdf.

60 Mason, George. “Final Draft of the Virginia Declaration of Rights.” June 12, 1776. http://consource.org/document/final-draft-of-the-virginia-declaration-of-rights-1776-6-12/.

61 Madison, James. “Bill of Rights as Proposed.” March 4, 1789. http://consource.org/document/bill-of-rights-as-proposed/#1

62 United States v. Jones, 565 U.S. 400 (2012)

63 Katz v. United States, 389 U.S. 347 (1967)

64 Wireless Communications and Public Safety Act of 1999.

Bibliography

Bedi, Monu. “The Curious Case of Cell Phone Location Data: Fourth Amendment

    Doctrine Mash-Up.” Northwestern Law Review 110 (2015): 64-67. Accessed

    February 20, 2018. https://scholarlycommons.law.northwestern.edu/cgi/

    viewcontent.cgi?article=1231&context=nulr_online.

 

Brief of Amici Curiae Empirical Fourth Amendment Scholars in Support of Petitioner, Sarah

O’Rourke Schrup, Jeffrey T. Green.

 

Brief of Amicus Curiae Restore the Fourth, Inc. in Support of Petitioner, Mahesha P. Subbaraman.

 

Brief of Technology Experts as Amici Curiae in Support of Petitioner, Brian Willen, Jack Mellyn,

Samuel Dippo, Alex Abdo.

 

Brief For Technology Companies As Amici Curiae In Support Of Neither Party, Carpenter v. United States

 

Brinegar v. United States, 338 U.S. 160 (1949)

 

Carter, Chelsea J. “Where (and when) do you use your smartphone?” CNN. July 13, 2013. Accessed

February 19, 2018. https://www.cnn.com/2013/07/13/tech/smartphone-use-survey/index.html.

 

Clancy, Thomas K. “The Framers’ Intent: John Adams, His Era, and the Fourth Amendment.” Indiana Law Journal 86:979. Accessed February 19, 2018. http://ilj.law.indiana.edu/articles/86/86_3_Clancy.pdf.

 

Mason, George. “Final Draft of the Virginia Declaration of Rights.” June 12,

    1776. http://consource.org/document/final-draft-of-the-virginia-declaration-of-rights-1776-6-12/.

 

The Harlan Institute. “Lesson Plan – Carpenter v. United States.” The Harlan Institute. http://harlaninstitute.org/lesson-plans/

 

Madison, James. “Bill of Rights as Proposed.” March 4, 1789. http://consource.org/document/bill-of-rights-as-proposed/#1

 

Katz v. United States, 389 U.S. 347 (1967)

 

Smith v. Maryland, 442 U.S. 735 (1979)

 

Stored Communications Act, 18 U.S.C. § 2703. http://harlaninstitute.org/

    lesson-plans/lesson-plan-carpenter-v-united-states/.

 

Terry v. Ohio, 392 U.S. 1 (1968)

 

Transcript of Oral Argument at 11, Carpenter v. US

 

U-s-history.com. “Writs of Assistance.” United States History.  http://www.u-s-history.com/pages/h1205.html.

 

U.S. Const. amend. I – X. http://www.billofrightsinstitute.org/

    founding-documents/bill-of-rights/.

 

U.S. Const. amend. IV, cl. 1. http://www.billofrightsinstitute.org/

    founding-documents/bill-of-rights/.

 

U.S. Const. amend. IV, cl. 2. http://www.billofrightsinstitute.org/

    founding-documents/bill-of-rights/.

 

United States v. Jones, 565 U.S. 400 (2012)

 

United States v. Knotts, 460 U.S. 276 (1983)

 

United States v. Miller, 425 U.S. 435 (1976)

 

US Legal. “Warrant Clause Law and Legal Definition.” US Legal.

            https://definitions.uslegal.com/w/warrant-clause/.

 

Wireless Communications and Public Safety Act of 1999. Pub. L. 106-81. October 1999.

legcounsel.house.gov. Web. 19 Feb. 2018.

Harlan Virtual Supreme Court: Carpenter v. US- Weindling and Bound

https://drive.google.com/file/d/1SvBTSKJiUrO8h66V7PidZbCqawHpU3f-/view

Respondent Brief – Weindling & Bound

To be in the Supreme Court of the United States

October Term, 2017

 

TIMOTHY IVORY CARPENTER, PETITIONER

V.

UNITED STATES OF AMERICA, RESPONDENT

 

RESPONDENT’S OPENING BRIEF

Matthew Weindling & Alexander Bound

Counsel of Record

Greenwich High School

Room 528

Greenwich Connecticut, 06830

(203) 625-8000

Counsel for Respondent

Oral argument: https://drive.google.com/file/d/1SvBTSKJiUrO8h66V7PidZbCqawHpU3f-/view

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: STORED COMMUNICATIONS ACT…………………………………………………………………… 6

 

ARGUMENT II: LOCATIONAL CELL CITE INFORMATION……………………………………………………… 7

 

ARGUMENT III: CELL SITE DATA……………………………………………………………………………………………. 8

 

ARGUMENT IV: PRIVACY………………………………………………………………………………………………………… 9

CONCLUSION…………………………………………………………………………………………………………………………. 11

 

ENDNOTES……………………………………………………………………………………………………………………………… 12

 

BIBLIOGRAPHY………………………………………………………………………………………………………………………. 14

Table of Authorities

 

Cases

Smith v. Maryland,

442 U.S. 735 (1979)………………………………………………………………………………………………………….. 5, 6, 8, 9

 

U.S. v. Miller,

307 U.S. 174 (1939)……………………………………………………………………………………………………………… 5, 6, 9

 

Katz v. U.S.,

389 U.S. 347 (1967)……………………………………………………………………………………………………………… 5, 6, 9

 

Ex Parte Jackson

96 U.S. 727 (1878)…………………………………………………………………………………………………………………. 5, 11

 

Riley v. California,

573 U.S. __ (2014)…………………………………………………………………………………………………………………… 5, 8

 

U.S. v. Jones

132 S.Ct. 945 (2012)………………………………………………………………………………………………………………… 7, 8

 

U.S. v. Knotts

460 U.S. 276 (1983)…………………………………………………………………………………………………………………….. 8

Constitutions

U.S. Const. amend. IV. …………………………………………………………………………………………….. 5, 6, 7, 8, 9, 11

 

U.S. Const. amend. I-X. ……………………………………………………………………………………………………………. 11

Other Authorities

Madison, James. “Bill of Rights as Proposed.” ConSource, 4 Mar. 1789, consource.org/document/bill-of-rights-as-proposed/20170303181756/. …………………………………………… 11

 

Thompson, Richard M. “The Fourth Amendment Third-Party Doctrine .” Congressional Research Service, fas.org/sgp/crs/misc/R43586.pdf. …………………………………………………………………………………. 6, 8

 

“Constitution of Massachusetts.” ConSource, 25 Oct. 1780, consource.org/document/constitution-of-massachusetts-1780-10-25/20130122075650/. ……………………. 11

 

Ahuja, Alok (1986) “Civil Forfeiture, Warrantless Property Seizures, and the Fourth Amendment,” Yale Law & Policy Review: Vol. 5:

Iss. 2, Article 10………………………………………………………………………………………………………………………….. 6

 

Stored Communications Act, 18 U.S.C. Chapter 121 §§ 2701–2712 (1986). ……………………………………… 6

 

Howe, Amy. “The Justices Return to Cellphones and the Fourth Amendment: In Plain English.” SCOTUSblog, SCOTUSblog, 24 Aug. 2017, www.scotusblog.com/2017/07/justices-return-cellphones-fourth-amendment-plain-english/. ……………… 7

 

Bernardo, Christian. “The Fourth Amendment, CSLI Tracking, and the Mosaic Theory.” Fordham Law Review, Fordham Law Review, 2017, ir.lawnet.fordham.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=5368&context=flr. ………………………………………………………………………………………………………………………….. 5, 8

Statement of Argument

 

The United States did not violate the Fourth Amendment because the obtention of cell-phone location data, CSLI, does not constitute a search as conceived by the framers.1 As established by Smith v. Maryland,2 information that is voluntarily given to a third party–which in this case is the data carrier–is not considered property or private because it is regularly used for legitimate business purposes. United States v. Miller resulted in an almost identical decision;3 in it, it was established that the petitioner, Mitch Miller, had no reasonable expectation of privacy concerning financial documents submitted to his banks. The checks and deposit slips in question were deemed “confidential communications but negotiable instruments to be used in commercial transactions” and thus were not considered private.4 Both cases contrast with Katz v. US,5 where federal agents used the actual conversations made in a phone booth to convict Michael Katz of illegally transferring gambling information. Katz had a reasonable expectation of privacy when entering the phone booth. In Ex Parte Jackson,6 the Supreme Court decided that the “outward form and weight” of letters and packages, including the name and address of the recipient, could be used in criminal prosecutions. In today’s increasingly digitized environment, emails and phone calls have assumed the position of letters and therefore should assume the same standards of Fourth Amendment jurisprudence.  This understanding of cellphone contents as private was made clear in Riley  v California,a where the privacy of cell phone contents, but not CSLI information are protected under the Fourth Amendment.b Any search of content requires a warrant. The distinction between the content of any given communication and the information necessary to convey it, in this case, the phone numbers dialed by Timothy Carpenter, is critical in determining the constitutionality of government investigation.

 

Argument

 

I. Measures taken by law enforcement officers in the Carpenter case are in accordance with the Stored Communications Act and the “third-party doctrine” legal principle.

 

The law enforcement officers in Carpenter did not violate the defendant’s Fourth Amendment rights in using cell-site data to convict Carpenter of armed robberies; because they made no effort to search the contents of Carpenter’s phone or his conversations, his privacy was not contravened.  As such they required neither a warrant for their actions nor did they infringe upon the Stored Communications Act,7 which does not require “probable cause,” but only “reasonable grounds” to obtain the records that confirmed Carpenter’s involvement in the perpetrated crimes. Law enforcement operatives were clearly versed in Fourth Amendment regulations of the Katz v. U.S. ruling,8 and avoided anything resembling its content driven violations.9 Moreover, their actions in contacting the phone company for data on its towers conforms to the precedent established in Smith v. Maryland.10  There cannot be a reasonable expectation of privacy when using third party cell phone towers.  In fact, the publicly disclosed privacy policies of cellphone companies like the one Carpenter used (MetroPCS, a division of T-Mobile) reserves the right of the carrier to reveal all data to law enforcement.  Not only does the binding contract give MetroPCS the right to use any individuals location whenever the phone is on, it also can divulge information for legal process and protection. As stated in T-Mobile privacy policy, “We may disclose Personal Information, and other information about you, or your communications, where we have a good faith belief that access, use, preservation or disclosure of such information is reasonably necessary.”11 US v. Miller further supports such theories, clearly stipulating that data obtained from a third party is ipso facto no longer personal or private property.12 The “third party doctrine” is a sound and well-established precedent that justly navigates insuring the protection of privacy guaranteed by the Fourth Amendment. Taking a step back, one must remember the original requirement of the Fourth Amendment, which stemmed back to ideologies present in the Magna Carta:14 Government was not allowed to abuse their power through covert examinations of dwellings and detrimental seizures of property.15 The Carpenter case reflects none of such properties. Carpenter is a criminal who has been brought to justice by a law enforcement department respectful of our centuries-old Constitution and its application in our contemporary world as interpreted through multiple rulings of this Supreme Court.

 

II. The locational cell site information retrieved by the FBI is approximate and does not compare to the specific GPS data employed in U.S. v Jones

 

In his majority opinion in U.S. v Jones,16 former associate justice Antonin Scalia indicated that the Global-Positioning System (GPS) which was utilized to track the movements of Antoine Jones’ Jeep established the vehicle’s location within 50 to 100 feet. The court ruled that the installment of the GPS device on Jones’ vehicle, without a warrant, constituted an unlawful search.17 It was unanimously agreed among the justices that such an intensive surveillance of Jones’ location over the course of 28 days was not in accordance with the Fourth Amendment.18 Summing up the decision, Scalia wrote, “Longer term GPS monitoring in government investigations of most offenses impinges on expectations of privacy.” To the unseasoned investigator, cell-site locational data used in Carpenter would likewise seem unconstitutional. However, the data in Carpenter only identifies the cell tower with which Carpenter’s phone made signals over the course of 127 days. As explained by FBI agent Christopher Hess during the hearing for the appellate court, cellphones function by forming a radio connection with a nearby cell tower, which project different signals in each direction. Thus, by identifying the cell tower a customer’s phone is connected to, the data carrier can identify the approximate location of a customer. In urban areas such as Detroit, each region of cellular coverage typically spans from a half-mile to two miles, a much broader and less specific area than that identified by the GPS tracker discussed in Jones.

III. The cell site data accessed by the FBI are collected by data carriers and are not part of the actual content of the communications, and thus fall under the third party doctrine.

 

The cell site data which indicated the approximate location of the respondent during the time of the crimes simply resulted from the respondent’s action of making phone calls at the same time that the crime was committed. Only the fact that Carpenter was using his phone in a certain cellular coverage sector, and nothing else, was used in the prosecution. Both the content of his conversations, and even the numbers which he dialed, which according the precedent established in Smith v Maryland would actually be acceptable in an investigation, were completely ignored.19 Indeed, only the general area of Carpenter’s whereabouts are being utilized throughout this case. Furthermore, the sector which contained the respondent at the time of the crimes encompassed roughly 1,000 buildings, far too many for law enforcement to accurately locate the respondent at the crime scene.c This locational information which identifies Carpenter as a probable suspect cannot even be considered private, because it is already used by the carrier for business purposes. When the defendants made or received phone calls, the providers made records of which cell towers each defendant’s phone had signaled during the call. The providers do this for billing and to identify weaknesses in signal in order to improve their network. Moreover, these providers always explain this feature in their contractual terms of service.d Cell phone users must also be at least generally aware that their devices cannot function without connection to cell towers, and that by establishing a connection with these towers they necessarily reveal their approximate location to the data carrier.e Carpenter’s claim to a reasonable expectation of privacy is legally void because of the third party doctrine described above.

The distinction between the content of any given cell-phone communication and the location of  the phone as revealed through cell site location information (CSLI) data is critical in determining the constitutionality of government investigations.f Riley did not extend Fourth Amendment privacy to CSLI data which falls under the “third party doctrine” as established in Smith,g and remains outside of Fourth amendment protections as “voluntarily” shared information.h  Unlike in Jones,i in which a detailed GPS tracking was involved to reveal specific information, CSLI data does not provide what Justice Sotomayor detailed as “precise, comprehensive record” in the Carpenter case.j In summary, information collected from CSLI does not fall within the Fourth amendment restrictions imposed by Jones or Riley. Finally, in United States v. Knotts,k the Supreme Court ruled that warrantless monitoring of a defendant does not violate Fourth Amendment rights when a defendant traveled on public streets and thereby “voluntarily conveyed” his location to anyone passing by.

 

IV.  There is no reasonable expectation of privacy because the respondent’s appeal does not meet the two-fold requirement established by associate justice John Harlan in Katz.

 

In the 1967 Supreme Court case Katz v. United States,20 justice John Marshall Harlan II, endeavoring to to establish a standard for what can be considered private under the Fourth Amendment, articulated the two-pronged test which would be adopted to determine whether a government search is in fact subject to the limitations of the aforesaid amendment. In his concurring opinion, he wrote “My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ Thus, a man’s home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the ‘plain view’ of outsiders are not ‘protected,’ because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.”21 Therefore, it was concluded that the information retrieved by government agents in Katz, who wiretapped a public phone booth to eavesdrop on Michael Katz’s conversations, was gathered illegally, because upon closing the door of the booth and paying the toll for making the call, Michael Katz exhibited an expectation of privacy that the community could certainly deem reasonable. However, the court also stressed in this case that “what a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection.”22 This last comment would have a profound influence on future cases US v. Miller and Smith v Maryland. In Miller,23 the Bureau of Alcohol, Tobacco, and Firearms obtained records from two of Mitch Miller’s banks, such as financial statements and deposit slips, in order to prove that he had carried whiskey and alcohol distilling equipment on which the liquor tax had not been paid. Miller claimed, however, that he has a Fourth Amendment interest in the records kept by the banks because they are merely personal records that were made available for a limited purpose. Using the two-pronged test referred to above, the court reversed the decision of the appellate court, ruling that no reasonable expectation of privacy could be construed. In his majority opinion, Associate Justice Lewis Powell wrote, “All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business…The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.”24 Therefore, in adjudicating the Carpenter case, we must adhere to precedent and maintain that the cell-site data which reveals the defendant’s approximate location over the course of 127 days are part of regular business records and thus may not reasonably be considered private because, using Harlan’s two-pronged test, Carpenter exhibited no actual or reasonable expectation of privacy by voluntarily giving his cellular information to his data carrier, MetroPCS, which uses this information for legitimate business purposes such as billing.

However, much more relevant to Carpenter is the Smith case, which concerned the various phone numbers dialed by Michael Lee Smith, a suspect in the robbery of Patricia McDonough. By asking Smith’s telephone company to place a pen register on Smith’s home telephone, which would record the numbers dialed on it, the police linked Smith to the robbery after having found that he had dialed McDonough’s number.25 Smith, the defendant, claimed that he had a legitimate Fourth Amendment interest in the phone numbers which he dialed in the confines of his own home. In response, the court wrote “the site of the call is immaterial for purposes of analysis in this case. Although petitioner’s conduct may have been calculated to keep the contents of his conversation private, his conduct was not and could not have been calculated to preserve the privacy of the number he dialed. Regardless of his location, petitioner had to convey that number to the telephone company in precisely the same way if he wished to complete his call. The fact that he dialed the number on his home phone rather than on some other phone could make no conceivable difference, nor could any subscriber rationally think that it would.”26 Thus, Carpenter can make absolutely no claim to Amendment IV’s protection for his cell-site data because his behavior could not, in any feasible manner, have been intended to maintain the secrecy of his cell phone activity.

Conclusion

 

The Fourth Amendment of the United States Constitution represents the virulent anti-government sentiment of colonial revolutionaries who repudiated the tyranny of King George III’s oppressive monarchy and aimed to form a new, egalitarian democracy which would serve the interests of the people, not of those in charge.27 In writing a new constitution for a new nation after having suffered through the countless problems of the Articles of Confederation, anti-federalists campaigned vehemently for a bill of rights that would manifest the colonists’ fear of power and concern for their own civil liberties. Indeed, the Massachusetts Bill of Rights had already articulated: “Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions.”28 Among the first ten amendments which would ultimately be ratified, the fourth addressed the importance of respecting private property on a governmental level. It evolved from Madison’s initial proposal,29 which went thusly: “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.” The use of “persons,” “houses,” and “effects,” which features in the actual amendment, does not require any adaptation to today’s significantly different world. The terms “papers”, however, does need some qualification. In Madison’s time, papers meant physical documents such as letters, receipts, and personal records. However, in today’s digitized world and indeed in the Carpenter case, “papers” can mean digital and online records such as texts, emails, and the cell-site data discussed in Carpenter. And, while the fourth amendment originally referred to the definition of “papers” as perceived by those of Madison’s time, it has been adapted to protect the digitized versions of “papers” that we experience on a daily basis today. However, as noted in the several arguments made above, the content of any given communication, such as an email or a phone call is most certainly protected from government intrusion, whereas the information needed to convey the communication is not. As in Ex Parte Jackson,30 the court ruled that the “outward form and weight” of a package, including the sender and recipient addresses, could be used in a court of law, so too should the cell site location data required to connect two callers be used to convict Timothy Carpenter of the armed robbery in which he partook.

Endnotes

1. U.S. Const. amend. IV.

2. Smith v. Maryland, 442 U.S. 735 (1979)

3. U.S. v. Miller, 307 U.S. 174 (1939)

4. U.S. v. Miller, 307 U.S. 174 (1939)
5. Katz v. U.S., 389 U.S. 347 (1967)

6. Ex Parte Jackson 96 U.S. 727 (1878)

a. Riley v. California, 573 U.S. __ (2014)

b. Bernardo, Christian. “The Fourth Amendment, CSLI Tracking, and the Mosaic Theory.” Fordham Law Review, Fordham Law Review, 2017, ir.lawnet.fordham.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=5368&context=flr.

7. Stored Communications Act, 18 U.S.C. Chapter 121 §§ 2701–2712 (1986).

8. Katz v. U.S., 389 U.S. 347 (1967)

9. Katz v. U.S., 389 U.S. 347 (1967)

10. Thompson, Richard M. “The Fourth Amendment Third-Party Doctrine .” Congressional Research Service, fas.org/sgp/crs/misc/R43586.pdf.

11. “T-Mobile Privacy Policy Highlights.” T-Mobile, T-Mobile, 31 Dec. 2015, www.t-mobile.com/company/website/privacypolicy.aspx#fullpolicy.

13. U.S. v. Miller, 307 U.S. 174 (1939)

14. Ahuja, Alok (1986) “Civil Forfeiture, Warrantless Property Seizures, and the Fourth Amendment,” Yale Law & Policy Review: Vol. 5:

Iss. 2, Article 10

15. Ahuja, Alok (1986) “Civil Forfeiture, Warrantless Property Seizures, and the Fourth Amendment,” Yale Law & Policy Review: Vol. 5:

Iss. 2, Article 10

16. U.S. v. Jones 132 S.Ct. 945 (2012)

17. U.S. v. Jones 132 S.Ct. 945 (2012)

18.  Howe, Amy. “The Justices Return to Cellphones and the Fourth Amendment: In Plain English.”SCOTUSblog, SCOTUSblog, 24 Aug. 2017, www.scotusblog.com/2017/07/justices-return-cellphones-fourth-amendment-plain-english/.

19. Smith v. Maryland, 442 U.S. 735 (1979)

c. Thompson, Richard M. “The Fourth Amendment Third-Party Doctrine .” Congressional Research Service, fas.org/sgp/crs/misc/R43586.pdf.

d.Thompson, Richard M. “The Fourth Amendment Third-Party Doctrine .” Congressional Research Service, fas.org/sgp/crs/misc/R43586.pdf.

e. Bernardo, Christian. “The Fourth Amendment, CSLI Tracking, and the Mosaic Theory.” Fordham Law Review, Fordham Law Review, 2017, ir.lawnet.fordham.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=5368&context=flr.

f. Bernardo, Christian. “The Fourth Amendment, CSLI Tracking, and the Mosaic Theory.” Fordham Law Review, Fordham Law Review, 2017, ir.lawnet.fordham.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=5368&context=flr.

g. Smith v. Maryland, 442 U.S. 735 (1979)

h. Riley v. California, 573 U.S. __ (2014)

i. U.S. v. Jones 132 S.Ct. 945 (2012)

j. U.S. v. Jones 132 S.Ct. 945 (2012)

k. U.S. v. Knotts, 460 U.S. 276 (1983)

20. Katz v. U.S., 389 U.S. 347 (1967)

21. Katz v. U.S., 389 U.S. 347 (1967)

22. Katz v. U.S., 389 U.S. 347 (1967)

23. U.S. v. Miller, 307 U.S. 174 (1939)

24. U.S. v. Miller, 307 U.S. 174 (1939)

25. Smith v. Maryland, 442 U.S. 735 (1979)

26. Smith v. Maryland, 442 U.S. 735 (1979)

27. U.S. Const. amend. IV.

28. “Constitution of Massachusetts.” ConSource, 25 Oct. 1780, consource.org/document/constitution-of-massachusetts-1780-10-25/20130122075650/.

29. Madison, James. “Bill of Rights as Proposed.” Consource, Consource, 4 Mar. 1789, consource.org/document/bill-of-rights-as-proposed/20170303181756/.

30. Ex Parte Jackson 96 U.S. 727 (1878)

Bibliography

Madison, James. “Bill of Rights as Proposed.” Consource, Consource, 4 Mar. 1789, consource.org/document/bill-of-rights-as-proposed/20170303181756/.

 

Thompson, Richard M. “The Fourth Amendment Third-Party Doctrine .” Congressional Research Service, fas.org/sgp/crs/misc/R43586.pdf.

 

“Constitution of Massachusetts.” ConSource, 25 Oct. 1780, consource.org/document/constitution-of-massachusetts-1780-10-25/20130122075650/.

 

Howe, Amy. “The Justices Return to Cellphones and the Fourth Amendment: In Plain English.” SCOTUSblog, SCOTUSblog, 24 Aug. 2017, www.scotusblog.com/2017/07/justices-return-cellphones-fourth-amendment-plain-english/.

 

Ahuja, Alok (1986) “Civil Forfeiture, Warrantless Property Seizures, and the Fourth Amendment,” Yale Law & Policy Review: Vol. 5:

Iss. 2, Article 10

 

Stored Communications Act, 18 U.S.C. Chapter 121 §§ 2701–2712 (1986).

 

Bernardo, Christian. “The Fourth Amendment, CSLI Tracking, and the Mosaic Theory.” Fordham Law Review, Fordham Law Review, 2017, ir.lawnet.fordham.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=5368&context=flr.

 

“T-Mobile Privacy Policy Highlights.” T-Mobile, T-Mobile, 31 Dec. 2015, www.t-mobile.com/company/website/privacypolicy.aspx#fullpolicy.

 

Smith v. Maryland, 442 U.S. 735 (1979)

 

U.S. v. Miller, 307 U.S. 174 (1939)

 

Katz v. U.S., 389 U.S. 347 (1967)

 

U.S. v. Jones, 132 S.Ct. 945 (2012)

 

Ex Parte Jackson, 96 U.S. 727 (1878)

 

Riley v. California, 573 U.S. __ (2014)

 

U.S. v. Knotts, 460 U.S. 276 (1983)

 

U.S. Const. amend. IV.

 

U.S. Const. amend I-X.

Harlan Institute Virtual Supreme Court: Carpenter v. US- Li and Yang

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.

BoyerAskewRespondentBrief

IN THE SUPREME COURT OF

THE STATE OF THE UNITED STATES

_______________

TIMOTHY IVORY CARPENTER,

Petitioner

Vs.

UNITED STATES OF AMERICA,

Respondent

___________________________________

___________________________________

Brief for Respondent

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?

Makaylia Askew

Joanna Boyer

 

TABLE OF CONTENTS

Question Presented…………………………………………………………………………1
Table of Authorities………………………………………………………………………..2
Statement of Argument…………………………………………………………………….3
Arguments………………………………………………………………………….3,4,5,6,7
Conclusion and Prayer……………………………………………………………………..7

TABLE OF AUTHORITIES

Cases

Couch v. United States 409 U.S. 322 (1973)
Donovan v. Lone Steer, Inc., 464 U.S. 408, 415 (1984)
Franks v. Delaware, 438 US 154 (1978)
Katz v. United States 389 U.S. 347 (1967)
Olmstead v. United States 277 U.S. 438 (1928)
Smith v. Maryland 442 U.S. 735 (1979)
Soldal v. Cook County, 506 U. S. 56 (1992)
United States v. Davis 785 F.3d 498 (2015)
United States v. Graham 846 F.Supp.2d 384 (2012)
United States v. Jones 132 S. Ct. 945 (2012)
United States v. Karo, 468 U.S. 705, (1984)
United States v. Knotts, 460 U.S. (1983)
United States v. Miller 425 U.S. 435 (1976)
United States v. Powell 379 U.S. 48 (1964)
United States v. Skinner, 690 F.3d 772 (2012)
United States v. Warshak 631 F.3d 266 (2010)
 

Other Authorities

Stored Communications Act, 18 U.S.C 2703(d)
George Mason, Virginia Declaration of Rights (June 12, 1776)
James Otis, Arguments Against Writs of Assistance

 

 

Statement of the case

In April 2011 the police arrested four men for committing nine armed robberies spanning across several months at various Radio Shack and T-Mobile stores across Detroit, Michigan. One of the men arrested confessed to these robberies and gave the FBI the names and numbers of 15 other men that acted as accomplices as well as his own cell phone records. The FBI searched through his records to identify other numbers that were contacted during the time of the robberies and requested a court order for the suspect’s cell records. The magistrate judges granted the law enforcement’s request for the cell records, including cell-site location data, under the Stored Communications Act. Through their cell records the police obtained evidence implicating Timothy Carpenter’s and Timothy Sander’s involvement in the armed robberies. Carpenter and Sanders moved to suppress the evidence derived from the FBI’s search of their cell phones. The United States District Court for the Eastern District of Michigan denied their motion to suppress the evidence.
 
 

Statement of the Argument

The FBI did not violate Mr. Carpenters Fourth Amendment rights by obtaining and using his cell-site location data without a warrant because the collection of cell-site location data does not implicate the Fourth Amendment. Carpenter did not have an expectation of privacy over his cell-site location that society is prepared to recognize as reasonable and, even if he did, the data was given to the FBI by the phone provider who acted as a third party, and governmental entities may procure data without obtaining a warrant under the Stored Communications Act.

 

 

Argument One: The FBI’s collection of Carpenters location did not implicate the Fourth Amendment

Carpenter’s cell-site location is not protected under the Fourth Amendment because he has no reasonable expectation of privacy when moving through a public place. The Fourth Amendment states that “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.” Soldal v. Cook County, 506 U.S. 56 (1992) defines a “search” as something that occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A person’s movements through public have never been recognized as a protected element under the Fourth Amendment because “a person has no reasonable expectation of privacy in his movements from one place to another.” United States v. Knotts, 460 U.S. (1983). The court in Katz v. United States 389 U.S. 347 (1967) continued this rationale by recognizing that the Fourth Amendment protects persons, not places, and that there is no Fourth Amendment protection when the petitioner makes no moves to preserve the privacy of the information in question. The cell-site location data that Carpenter is attempting to suppress clearly pertains to a place not a person because the record offers nothing besides a location and Carpenter did not take any steps to preserve the privacy of his location, had he simply turned his phone off while moving around areas he wanted to remain private the issue would be different however he did not and therefore failed to establish a reasonable expectation of privacy.
 

Argument two: The FBI’s collection of Carpenter’s cell-site location data did not violate the Fourth Amendment because the expectation of privacy Carpenter had was forfeited due to the third party doctrine

Even if Carpenter had an expectation of privacy, he has given up that privacy protection by giving his cell-site data to a third party. The third party doctrine was created in Katz v. United States 389 U.S. 347 (1967) and upheld in Smith v. Maryland 442 U.S. 735 (1979) which held that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties” and that “cell-phone users, like landline users, do not have a general expectation that data generated when they use telephone company equipment will remain secret.”
 
United States v. Davis 785 F.3d 498 (2015) established a test to explain when the third party doctrine does not violate the Fourth amendment. This case sets up an analogous situation before the court to the one presented today; Davis was brought up on charges under the Hobbs Act and the federal government collected his cell records spanning across the time the robberies took place, including his cell-site location data. The court in that case held that the use of the third party doctrine did not violate the Fourth Amendment because the  records did not show (1) the contents of any call; (2) the contents of any cell phone; (3) any data at all for text messages sent or received; or (4) any cell tower location information for when the cell phone was turned on but not being used to make or receive a call. The government did not seek, nor did it obtain, any GPS or real-time location information.” None of those things have occurred in the case before the court and, unlike the case in Jones v. United States; the FBI did not collect any real time location. The FBI merely obtained Carpenter’s cell-site location data when the phone was on around the times the robberies occurred.
The court has considered whether to apply the third party doctrine to cell-site data in cases like United States v. Graham 846 F.Supp.2d 384 (2012) which held that cell-site location data does not implicate the Fourth Amendment, and United States v. Powell 379 U.S. 48 (1964) which held that there is no reasonable expectation of privacy in cell-site location information. United States v. Miller 425 U.S. 435 (1976) created a way to analyze whether information fell under the third party doctrine by holding that Miller had no protectable Fourth Amendment interest in the account records at issue because the documents were: (1) business records of transactions to which the banks were parties and (2) voluntarily conveyed to the banks.” In doing so the court created the requirement that a person have “ownership and possession” over the papers and the records they are attempting to protect under the Fourth Amendment. However, as with the bank records in Miller, Carpenter can assert neither ownership nor possession of the cell-site records. Rather, the cell phone providers created the records for their own business purposes as part of the process of providing telephone service to customers.
To address the first point of the Miller test, it is clear that Carpenter’s cell phone provider is a party in business transactions dealing with his phone because customers of a cell phone provider must sign a contract acknowledging, among other things, that the company documents and records their cellular record and Carpenter willingly signed an agreement with the company in exchange for its service. Contrary to the petitioner’s suggestion that Americans are oblivious that cellular data can be used to track your location and therefore withhold some level of privacy, the court in Smith v. Maryland 442 U.S. 735 (1979) “doubted that people, in general, entertain any actual expectation of privacy,” given that “all telephone users realize that they must ‘convey’ phone numbers to the telephone company, since it is through the telephone company switching equipment that their calls are completed.” The Court further emphasized that “the phone company has facilities for recording this information” and “does in fact record this information for a variety of legitimate business purposes.” Moving onto the second part of the Miller test, Carpenter’s action in conveying information about his location to cell towers was voluntary, as in Miller and Smith. In those cases, like this one, individuals were required to reveal information about themselves to use an important service provided by a business that was a “ubiquitous part of modern society.”
Even if Carpenter feels he has an expectation of privacy over his cell-site location data, it is not one that society is willing to recognize. United States v. Graham 846 F.Supp.2d 384 (2012) held that “even if the defendant did harbor some subjective expectation that his cell-site location would remain private, this expectation is not one that society is prepared to recognize as reasonable.”
Carpenter could have ensured his privacy easily by turning his phone off; however, he did not and thus lost any claim to a reasonable expectation of privacy. Without an expectation of privacy that society is prepared to recognize as reasonable, there is no search that requires the protections of the Fourth Amendment through a warrant.

Argument Three: The Stored Communications Act requirement complies with applicable Fourth Amendment principles and is not constitutionally unreasonable

 

Even if Carpenter is still entitled to certain privacy protections, the extent of the protections offered by the Fourth Amendment has been the topic at issue for the this court as technology advances and new questions of privacy are asked. The government’s best solution to these changes can be found in United States v. Skinner, 690 F.3d 772 (2012) which held that “technological changes can alter societal expectations of privacy, “ but reasoned, “at the same time, law enforcement tactics must be allowed to advance with technological changes, in order to prevent criminals from circumventing the justice system. The court in Olmstead v United States defined this reasoning by holding that “In circumstances involving dramatic technological change, the best solution to privacy concerns may be a legislative body which is best situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.” In United States v. Jones 132 S. Ct. 945 (2012), the Fifth Circuit concluded that a legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way. In the end the Fifth Circuit determined: (1) Congress has crafted such a legislative solution in the Stored Communications Act, and (2) the Stored Communications Act ‘conforms to existing Supreme Court Fourth Amendment precedent’ and declined to create a new rule to hold that Congress’s balancing of privacy and safety is unconstitutional.
The legislation in this case was passed by Congress after they considered the new circumstances that arose due to cell-site location data. They passed the Stored Communications Act which provides that “A governmental entity may require the disclosure by a provider of electronic communications services of the contents of a wire or electronic communication and disclose a record or other information pertaining to a subscriber to or customer of such service that is in electronic storage in an electronic communications system for one hundred and eighty days or less if the contents of the wire or electronic communication was given on behalf of, and received by, means of electronic transmission, such as a subscriber or customer of such remote computing service as long as the governmental entity obtains a court order by showing specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” This act allows the government to procure digital information without an official court order because it establishes certain procedural safeguards to ensure that the privacy protections offered in the Fourth Amendment are secured. Through this wording the Founding Fathers have established that, in order to protect a person’s privacy rights, there must be probable cause that a crime has occurred, a court order, and a way to hold the officer making the search accountable.
The first protection within the Stored Communication Act secures the probable cause protection by setting a statutory standard. While the standard of ‘specific and articulable facts’ may be less than the probable cause standard for a search warrant, the government is still required to obtain a court order and present to a judge facts showing reasonable grounds to believe the records are relevant and material to an ongoing criminal investigation, a reasoning that has been found constitutional in cases like United States v. Davis 785 F.3d 498 (2015) which held that “The Stored Communications Act does not lower the bar from a warrant to a § 2703(d) order. Rather, requiring a court order under § 2703(d) raises the bar from an ordinary subpoena to one with additional privacy protections built in. The government routinely issues subpoenas to third parties to produce a wide variety of business records, such as credit card statements, bank statements, hotel bills, purchase orders, and billing invoices. In enacting the Stored Communications Act, Congress has required more before the government can obtain cell phone records from a third-party business.” Therefore, the Stored Communications Act goes above and beyond the constitutional requirements regarding compulsory subpoena process and sufficiently addresses the first protection in the Fourth Amendment.
The Stored Communications Act secures the second protection of a court order by allowing a governmental entity to obtain digital information only if they obtain a court order from a magistrate judge.
The Stored Communications Act secures the final protection offered in the Fourth Amendment because it holds the governmental entity accountable by “interposing a ‘neutral and detached magistrate’ between the citizen and the officer engaged in the often competitive enterprise of ferreting out crime.” as held in United States v. Karo, 468 U.S. 705, (1984), the act also prohibits telephone companies from voluntarily disclosing such records to “a governmental entity” and bars “improper disclosure” of records obtained under § 2703(d), providing remedies for if such inappropriate disclosures occur, including penalties for violations of the Act’s privacy-protecting provisions, including money damages and the mandatory commencement of disciplinary proceedings against offending federal officers.
Finally George Mason, in his Virginia Declaration of Rights, (unanimously adopted on June 12, 1776) he argues that “General warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any evidence, are grievous and oppressive, and ought not to be granted.” James Otis also made similar appeals against general warrants in his Argument Against Writs of Assistance. He argues that general warrants are too vague to properly protect a citizens Fourth Amendment rights because anyone can receive a warrant and then be granted to search and seize anything, regardless if it was previously specified. The court order granted by the magistrate judge is different than a general warrant because the person making the request for the court order must be acting on behalf of a governmental entity and must list everything that they are trying to obtain in the order, which limits the power of the Stored Communications Act.
Larger aggregations of cell-site location data do not extend the governmental procurement past that which is protected under the Stored Communications Act because United States v. Graham 846 F.Supp.2d 384 (2012) held that the acquisition of cell site location data pursuant to the Stored Communications Act does not implicate the Fourth Amendment, regardless of the time period involved. United States v. Davis 785 F.3d 498 (2015) continues this by allowing acquisitions as long as the time period is within the timeframe of the crimes. Furthermore, Congress considered the length of surveillance and decided that 180 days or less offered sufficient protection. The FBI’s procurement of data spanning across 127 days is well within Congress’s 180 day protection and the FBI chose those days because they are around the times the armed robberies took place.
 

CONCLUSION

Timothy Carpenters cell site location is not protected under the Fourth Amendment because he has no reasonable expectation of privacy when moving through a public place. A person’s movements through public has never recognized as a protected element under the Fourth Amendment because “a person has no reasonable expectation of privacy in his movements from one place to another.” As stated in United States v. Knotts, 460 U.S. (1983). The stored Communications act requirement complies with applicable Fourth Amendment principles and is not constitutionally unreasonable. This act does not lower the bar from a warrant to a §2703 order. Due to the third party doctrine the collection of Carpenters cell site location did not violate the Fourth Amendment. Smith v Maryland 442 U.S. 735 (1979) held that a person has no legitimate expectation of privacy in information he voluntarily turns over to 3rd parties and the cell phone users, like landlines users, do not have general expectation that data generated when they use telephone company equipment will remain secret. When taking this information into account it only helps to show that Timothy Carpenters Fourth Amendment rights when it comes to his cell site location was not violated.
 

PRAYER

It is for these reasons that we pray that the court rule in favor of the Respondent, the United States and uphold the lower court’s ruling.