United States: Supreme Court Searches For Fourth Amendment Line For The Digital Economy

On November 29, 2017, the Supreme Court heard oral argument in Carpenter v. United States. The Court’s decision could have critical implications for companies operating in the digital economy and their ability to limit government access to data about consumers, particularly so-called non-content data. The oral argument featured justices still in search of a workable limit.

I. The Fourth Amendment’s Third-Party Doctrine

The Fourth Amendment generally protects “persons, houses, papers, and effects” in which individuals have a “reasonable expectation of privacy.” However, under the “third-party doctrine,” developed by the Supreme Court in the 1970s, individuals generally lack a reasonable expectation of privacy in information voluntarily conveyed to third parties. With few exceptions, the government historically has been able to access such data without a warrant. However, due to profound technological advancements, individuals’ day-to-day interactions with their digital devices now generate substantially more data about their activities than in the 1970s. Companies retain this data for various purposes, and law enforcement has seized on this retention as a source of evidence in prosecutions. In 2016, for example, Yahoo reported that it received 8,929 civil and criminal government requests for information, and Comcast stated that it received 16,607 criminal subpoenas. Law enforcement has requested data from Internet of Things devices present in many homes, including Amazon’s Echo and others.

This trend has heightened concern about the appropriateness of the third-party doctrine in the digital age. In a 2012 concurrence in United States v. Jones, Justice Sotomayor bluntly suggested that the doctrine is “ill-suited to the digital age” and “it may be necessary to reconsider” the premise that secrecy is a prerequisite to Fourth Amendment protection.

II. Challenge to the Third-Party Doctrine in Carpenter v. United States

In Carpenter, the FBI applied for court orders under the Stored Communications Act (“SCA”) to obtain the cell site location information (“CSLI”) of various suspects, including Timothy Carpenter. Unlike a warrant, an SCA order only requires an application establishing “specific and articulable facts showing that there are reasonable grounds to believe” that the evidence sought is “relevant and material to an ongoing criminal investigation.” In response, the cellular companies produced 127 days of CSLI for Carpenter, which was used to establish Carpenter’s proximity to a string of robberies. Carpenter’s motion to suppress the records on Fourth Amendment grounds was denied, and he was ultimately sentenced to 116 years in prison. On appeal, the majority of a Sixth Circuit panel found that Carpenter lacked a reasonable expectation of privacy in CSLI because it was a business record made by the carrier based on information voluntarily conveyed to it by Carpenter.

III. Concerns from the Justices during Oral Argument

Oral argument reflected a Supreme Court confronting great difficulty in articulating a workable rule that would decide the case without having marked spillover effects into other areas of Fourth Amendment and privacy law. As Justice Breyer remarked, “This is an open box. We know not where to go.”

Justice Kennedy expressed doubt that individuals have an expectation of privacy in their cell phone location data. The 81-year-old justice noted that he viewed it as common knowledge that cellular providers collect location data and jokingly remarked that “[i]f I know it, everyone does.” Yet the Court clearly struggled with the broader privacy implications of the case, expressing frustration at the difficulty of applying dated case law and statutes to new technologies. Justice Alito remarked that “[n]ew technology is raising very serious privacy concerns,” and Justice Sotomayor commented that most Americans “want to avoid Big Brother. They want to avoid the concept that government will be able to see and locate you anywhere you are at any point in time.”

Several justices from different ideological perspectives pressed the government on the applicability of the third-party doctrine. Justice Gorsuch, in particular, expressed frustration with the position of the United States, remarking “[I]t seems like your whole argument boils down to if we get it from a third party we’re okay, regardless of property interest, regardless of anything else.” He summarized the government’s argument as “so long as a third party’s involved, we can get anything we want.” Similarly, Chief Justice Roberts emphasized that CSLI was not a business record “simply created by the company…. It’s a joint venture with the individual carrying the phone.” Justice Kagan meanwhile pressed for a meaningful reason why data should lose its Fourth Amendment protection merely because it was created with a third party.

IV. Potential Implications of the Court’s Decision in Carpenter

The case, which will likely be decided in the late spring or early summer of 2018, has significant implications well beyond CSLI. As noted in an amicus brief filed by technology companies including Apple, Facebook, Microsoft, and Twitter, devices that are now commonplace require the creation or transmission of vast amounts of metadata. Mobile devices and applications collect location data that is even more precise than CSLI. Wearable devices are generating data regarding consumers’ day-to-day lives, including their activity levels and heart rates. Law enforcement is simultaneously trying to use this data in its investigations. In connection with a recent murder case, for example, law enforcement obtained a warrant to access records of the victim’s Fitbit exercise tracker, which undermined the defendant’s story. In another recent investigation, law enforcement sought data from a suspect’s pacemaker to show that the suspect had an elevated heart rate and was not, as he contended, asleep.

Companies collecting data about consumers will want to pay close attention to the outcome of the Carpenter case. In particular, Carpenter could define the boundaries of what is a reasonable expectation of privacy in the digital realm. While the Fourth Amendment generally applies only to government actors, courts could draw on the Supreme Court’s Fourth Amendment analysis when evaluating privacy claims in the non-public realm. Carpenter could not only have significant implications for law enforcement, therefore, but also for private companies whose practices around the collection and use of personal information in the United States have been largely guided by what is reasonable and neither unfair nor deceptive. For example, the Court’s analysis could influence how companies decide what privacy and security promises to make to their customers in their online privacy policies, and even what data to collect and how to use that data. Among other things, the Court’s holding concerning the reach of the government’s warrantless access to consumer data could also have implications on data transfers from regions, such as the EU, concerned about the reach of police powers in the United States, with the potential for new or more rigorously enforced barriers to transfer. The Carpenter case is an important one to watch.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions