Privacy in the Constitutions, Carpenter and Walton: Confluence and Divergence

• Jurisdiction: United States,Federal
• Citation: Vol. 23 No. 06
• Publication year: 2019
• topic: Constitutional Law,Criminal Law,Technology

Privacy in the Constitutions, Carpenter and Walton: Confluence and Divergence

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by Honorable Simeon R. Acoba, Jr.

Introduction

The United States Supreme Court-and the Hawai'i Supreme Court recently have grappled with technology-related incursions on the right of privacy. The United States Supreme Court continues to shape the privacy contours of the United States Constitution's Fourth Amendment¹ in light of technological advances. See Carpenter v. United States, 138 S. Ct. 2206 (2018). On the other hand, the Hawaii Supreme Court is situated to apply the state's counterpart provision in article I, section 7 of the Hawai'i Constitution to changes brought about by technology,² In Carpenter, the United States Supreme Court held that a cell-phone user had a constitutional right of privacy in certain cell phone information that had tracked his physical movements when he used his phone. In doing so, the Court rejected the application of the "third-party doctrine" to cell phone tracking data that had been stored by cell phone service providers. The third-parry doctrine provides that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Carpenter, 138 S. Ct. at 2216 (quoting Smith v. Maryland, 442 U.S. 735, 743-44 (1979)).

Prior to the Carpenter decision, the Hawai'i Supreme Court addressed the issue of privacy in light of technological impacts in State v. Walton, 133 Hawai'i 66, 91-102 (2014) [hereinafter, Walton]³ Walton was among the cases cited in support of Carpenter's position on certiorari.⁴ Additionally, modification of the third-party doctrine in the context of stored cell phone information had been proposed with the suggestion that "[a] good example for the [U.S. Supreme] Court to follow is the Hawaii Supreme Court's decision in State v. Walton'' See Carlos Aquilar, Privacy or Private: A New Age Look at Old School Privacy Laws, 53 Cal.-WL.Rev. 85, 117 (Fall 2016). The "factors [in , Walton] regarding whether a I person is entitled to reasonable privacy expectations under the third-party doctrine . .. allow for a flexible third-party doctrine where electronic in formation is stored on equipment owned by a private service provider."⁵

The following discussion is divided into six major parts: (A) the tenets of the Carpenter decision, (B) the precedential course of Carpenter, (C) an alternative formulation of the third-party doctrine, (D) the future of the Carpenter decision, (E) the interrelationship of the Carpenter and ' Walton decisions, and (F) the conclusion. Parts (B) and (E) each discuss four topics: (1) the state of the third-party doctrine, (2) the extension of an individual's privacy protection in third-party property, (3) the expansion of privacy protection to subpoenas duces tecum and compulsory process in ' criminal and civil proceedings, and (4) the competing views of the "warrant clause" and "reasonable search" clause in the Fourth Amendment.

A. The Tenets of the Carpenter Decision

In Carpenter, the United States Supreme Court held that a cell-phone user had a legitimate expectation of privacy in certain information contained in business records of his cell phone service providers. See Carpenter, 138 S. Ct. at 2223. The information disclosed the location and duration of calls made to him and by him (referred to as cell-site location information, or "CSIi") over a period of approximately four months. See id. at 2212. The records were introduced at trial to establish the user's proximity in distance and time to the sites of federal crimes for which the user was eventually convicted. The government obtained the records under a court order authorized by the Stored Communications Act ("SCA"), 18 U.S.C.§ 2703 (2012). The order was based on '"specific and articulable facts showing that there are reasonable grounds to believe' that the records sought 'are relevant and material to an ongoing criminal investigation.'" Carpenter, 138 S. Gt. at 2212 (quoting 18 U.S.G. § 2703(d)).

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The SCA also authorized a court to issue a warrant for the records based on probable cause. See 18 U.S.G. § 2703(c)(1)(A).⁶ Apparently a warrant was required to access records stored for 180 days or less, and a court order sufficed for records stored for more than 180 days. See § 2703(a). The SCA indicated that the states could follow their own court procedures for issuance of a comparable state court order or of a state warrant. See § 2703 (c)(1)(A).

A majority of the Supreme Court held that the third-party doctrine did not extend to the GSO data. Rather, the Court applied the probable cause warrant requirement under the Fourth Amendment to the records of the service providers, invalidating the reasonable grounds basis as insufficient to justify the search of CSO data. See Carpenter, 138 S Ct. at 2221. The warrant requirement would also apply to privacy material sought to be obtained through compulsory process because such process was analogous to the SCA court order issued in Carpenter.

1. The Sixth Circuit Court of Appeals Decision

Carpenter appealed to the Sixth Circuit Court of Appeals following his conviction, contending that his pretrial motion to suppress use of the CSO records at trial was wrongfully denied. See United States v. Carpenter, 819 F.3d 880, 884 (6th Cir. 2016).⁷ The Sixth Circuit focused on whether the government's acquisition of cell-site data from business records of defendants' wireless carriers under the "reasonable grounds" court order should have proceeded instead under a Fourth Amendment search warrant based on probable cause. Id. at 886.

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At the outset, the Sixth Circuit recognized that "the Supreme Court [had] moved beyond a property-based understanding of the Fourth Amendment, to protect certain expectations of privacy ... [that] satisfy 'a twofold requirement': first, the person asserting it must 'have exhibited an actual (subjective) expectation of privacy'; and second, that expectation must 'be one that society is prepared to recognize as 'reasonable.'" Id. at 866. (quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)). When this two-fold requirement is satisfied, "government action that 'invade [s]' the expectation normally counts as a search." Carpenter, 819 F.3d at 886 (quoting Smith v. Maryland, 442 U.S. 735, 740 (1979)).

The Sixth Circuit declared that the "Fourth Amendment protects the content of the modern day letter, the email" but not "the internet analogue to envelope markings, . . . used to route internet communications like ... addresses on an email, or IP addresses." Carpenter, 819 E3d at 887. Cell-site data, like mailing or IP addresses, "facilitate personal communications" but are not "part of the content of those communications themselves," and thus collection of the data was "not a search" subject to the warrant clause of the Fourth Amendment. Id.

The Sixth Circuit relied heavily on Smith v. Maryland, 442 U.S. 735 (1979). Smith had upheld the government's warrantless use of pen registers to monitor phone numbers of calls made by the defendant. A telephone user was "charged .. . with knowledge that 'the [third-party] phone company does in fact record this information for ... legitimate business purposes.'" Carpenter, 819 F.3d at 888 (quoting Smith, 442 U.S. at 743). Under this "third-party doctrine," see United States v. Miller, 425 U.S. 435, 443 (1976), the user was said to have "voluntarily conveyed" these numbers to a third party—the phone company—and thus had forfeited the privacy protection of the Fourth Amendment. Carpenter, 819 E3d at 888 (quoting Smith, 442 U.S. at 744). Similarly, here the information collected only related to the "means of establishing communication," recorded when "the defendants' cellphones signaled the nearest cell towers." Carpenter, 819 E3d at 888. Further support was derived from Miller, for the proposition that "business records obtained from a third party . . . can only diminish the defendants' expectation of privacy in the information." Carpenter, 819 E3d at 889 (citingMiller, 425 U.S. at 443).

The Sixth Circuit distinguished United States v. Jones, 565 U.S. 400 (2012). In Jones, the government's warrantless attachment of a GPS device to the defendant's vehicle to record his movements was held a trespass violative of the warrant requirement. See Carpenter, 819 F.3d at 888-89; see also Jones, 565 U.S. at 404. The GPS device was perceived as much more precise than the cell-phone tracking system of cell phone towers. See Carpenter, 819 E3d at 889. The Sixth Circuit also distinguished Riley v. California, 134 S. Ct. 2473 (2014), which had held that the contents of a defendant's cell phone could not be accessed without a warrant. See id. at 2485. Riley was inapposite because the amount of data collected was said to be voluminous in comparison to that in the instant case. See Carpenter, 819 E3d at 889; see also Riley, 134 S. Ct. at 2485.

Alluding to the expectation formula in Katz v. United States, 389 U.S. 347 (1967), the Sixth Circuit opined that Congress, as representative of society, might have determined that the "reasonable grounds" standard under the SCA was a "middle ground" between probable cause and no standard at all, and thus "reasonable." Carpenter, 819...