Three pending U.S. Supreme Court cases grapple with automobile and cellphone privacy

The U.S. Supreme Court has agreed to hear three cases that could answer pressing questions about the right to privacy in cars and cell phones.

Two cases, Collins v. Virginia and Byrd v. United States, tackle Fourth Amendment questions related to vehicle searches, but a third, Carpenter v. U.S., has broader privacy implications for almost everyone.

On Nov. 29, the court will hear arguments in Carpenter on whether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Though the nation’s high court in Riley v. California, 573 U.S. __ (2014) exempted from warrantless search a cell phone’s contents such as text messages, emails, photos, social media posts, still to be determined is whether the same privileges apply to information about the phone’s location — which law enforcement agencies can obtain from cell phone companies without the customer’s knowledge.

For some, especially his fellow lawyers, use of a phone is “as essential as breathing,” said Scott A. Sugarman, name partner at Sugarman & Cannon in San Francisco, who has written commentary on the case. “I don’t want to give away this data, but it’s essential to use of the phone,” Sugarman said. “But if you give the information to someone, does that mean you give it to everyone?”

The underlying question in Carpenter, Sugarman said, is whether users really regard providing location and other phone data to a phone company as consent to sharing that information with the government. “The fact I let some people in doesn’t mean I let everybody in — meaning law enforcement,” he said.

In Carpenter, the 6th U.S. Circuit Court of Appeals rejected defendant Timothy Carpenter’s argument that the government needed a warrant to search his cell site data, which reveals a user’s whereabouts by the location of cell towers their phone has connected with.

The circuit court reasoned that this data, less sensitive than the content of calls, was collected as part of a phone company’s ordinary course of business, and revealed nothing about the content of the communications; therefore, Carpenter had no reason to believe it would be kept private.

Carpenter hinges on whether the “third-party doctrine,” the basis of the lower court’s decision, applies to data in the digital age. The third-party doctrine was established by cases in the 1970s which concluded certain records or information shared with third parties deserve no Fourth Amendment protection.

In one, United States v. Miller, 425 U.S. 435 (1976), the court held that bank customers do not have any Fourth Amendment interest in their bank records, because all the information in those records has been voluntarily conveyed to the bank.

Yet, as Carpenter’s brief noted, quoting 11th U.S. Circuit Court of Appeals Judge Robin S. Rosenbaum in United States v. Davis 785 F.3d 498 (2015), “In our time, unless a person is willing to live ‘off the grid,’ it is nearly impossible to avoid disclosing the most personal of information to third-party service providers on a constant basis, just to navigate daily life.”

“The chief mandate for our government is to preserve and protect our rights, including the right to live without unreasonable government intrusion, and cases like these three show how often and to what extent the government continues to challenge their mandate,” said attorney Jenna Ellis, fellow at the Centennial Institute, a think tank at Colorado Christian University.

“This case has the potential to be a blockbuster opinion,” said ACLU attorney Nathan F. Wessler, counsel of record in Carpenter, which he said presents an opportunity for the Supreme Court to update Fourth Amendment protections. “Courts can’t apply pre-digital analysis to digital age searches. When it comes to invasions of privacy related to digital technology, a new analysis has to apply.”

Police in Detroit obtained four months of Carpenter’s location data, information about “everywhere Mr. Carpenter had gone, day after day,” which would have been impossible to obtain before cell phones existed, Wessler said.

Carpenter is an extremely important decision because it will control the future of Fourth Amendment protections in digital privacy contexts, said Richard Re, professor at UCLA School of Law. Re said, based on previous rulings, he saw it as likely that the court is interested in updating the third-party doctrine.

“If they don’t do it in Carpenter, they may leave room to do it in a future case,” Re said.

Even if the court doesn’t address the constitutional questions about cell site data, Re said, there should be some safeguards. “What it would mean is we’d have to rely more on the legislature, agencies, and the like to create privacy protections,” he said.

Parsing the issue a different way, Orin S. Kerr, professor at George Washington University Law School, agrees Carpenter will be a “blockbuster” because its significance extends to many different kinds of records. Kerr disagrees that a new analysis of the Fourth Amendment is warranted.

“Modern surveillance law is based on the assumption that ‘non-content’ records, such as bank records and phone records, are unprotected,” Kerr said. “It’s not a private email, letter, or content of a phone call. You’re not writing a message. You’re giving a message to a bank in that sense, but that communication becomes the bank’s.”

In his amicus brief on the case, Kerr came down firmly on the side of respondents, asserting that the Fourth Amendment does not apply to the collection of cell site data, which he called “the network equivalent of unprotected observation in public space.”

Kerr’s brief argues that rules regulating disclosure do not create a property right, and “the fact that information concerns someone does not make that information his stuff. If the law limits when Alice can tell the world about what she saw Bob do, Alice’s recollection does not become Bob’s ‘papers’ or ‘effects,’” Kerr wrote, using the language of the Fourth Amendment. “Alice’s recollections belong to Alice, not Bob.”

“The third-party doctrine is being challenged left, right, and center,” explained Stanford Law School Professor Robert Weisberg.

Though a police officer might observe a someone in public without violating a reasonable expectation of privacy, Weisberg said, the question the justices in Carpenter might be ready to grapple with is: Could a long series of such observations add up to a violation of privacy?

According to “the mosaic theory,” Weisberg explained, if police accumulated data about string of locations over a period of time, “the narrative of it tells a pattern of your life.”

Kerr’s brief urges the court to reject this analysis. “A majority opinion of the court has never adopted the mosaic theory. And it should not start now,” he wrote. Calling the mosaic approach “well-intentioned but deeply misguided,” Kerr said, “It is a dramatic departure from traditional approaches, and it would drag state and federal courts into impossible line-drawing exercises that would cause endless confusion.”

The question in Collins v. Virginia is whether the Fourth Amendment’s “automobile exception” permits a police officer, uninvited and without a warrant, to enter private property and search a vehicle parked a few feet from a home.

The case arose when police went to the Virginia home of petitioner Ryan Collins, whom they suspected of stealing a motorcycle. An officer walked up the driveway, removed a tarp covering a motorcycle, matched its vehicle identification number\s, and verified that it was stolen.

Collins argued that because the officer didn’t have a search warrant, the evidence should be suppressed, and that the Supreme Court of Virginia was wrong to expand the automobile exception to include vehicles on private property.

The case is a narrower, more traditional Fourth Amendment question, Sugarman said, essentially asking whether a vehicle on private property, very close to the home, is encompassed by privacy protections or subject to the automobile exemption. “I tend to think uncovering [the motorcycle] is a search by itself,” he said. “There is a penumbra around the home. It has a heightened level of protection.” Both Collins and Byrd v. United States, which do not yet have dates set for argument, seek to question “a really aggressive approach to law enforcement engaging in widespread suspicionless searches,” said Washington, D.C.-based Orrick, Herrington & Sutcliffe LLP partner Bob Loeb, co-counsel in Byrd. The Byrd case asks whether the driver of a rental car, who is not listed on the rental agreement, has the same expectation of privacy as the driver of any other car.

When petitioner Terrence Byrd was pulled over in a car his girlfriend had rented, police in Pennsylvania learned that he was not a party on the rental contract, subjected him to a warrantless search, and found heroin in the trunk.

Byrd argued that the heroin could not be used as evidence because the search violated the Fourth Amendment. The 3rd U.S. Circuit Court of Appeals agreed with law enforcement, reasoning that he did not have any expectation of privacy because “he was not a party to the rental agreement and he did not pay for the rental.”

According to Loeb, troopers were aware of previous 3rd Circuit rulings saying that drivers of rental cars who were not part of the rental agreement had no privacy rights. In Collins and Byrd, the Supreme Court’s decision to review indicates that “you have courts raising an eyebrow at what the government is doing,” Loeb said.

“Their argument is: Because if you’re in technical violation of a rental agreement, then you have zero expectation of privacy. They’re taking the contractual provision which has nothing to do with privacy and making it negate privacy,” Loeb said.

“The split in the circuit is hard to comprehend, in light of the high court’s own recognition, dating back at least to Minnesota v. Olson, (495 US 91 (1990)) that property is often shared in ways that are both crucial and informal,” said Daniel Yeager, professor at California Western School of Law.

“If I loaned my married daughter, whose name is now changed, my car, and she makes an illegal left hand turn, should police toss her car because her name is not on the registration?” Based on Olson and similar cases, Yeager said, “Such a search would be manifestly absurd.”

Loeb said the 3rd Circuit was an outlier, and other jurisdictions have taken the opposite view of privacy for rental car drivers, and the Supreme Court took the case to resolve the circuit split.