Digital Privacy and the Fourth Amendment

10 Jan, 2024

In a large departure from my last post, I wanted to write about something that I’ve spent a lot of time researching for papers, but also just for fun: digital privacy and the Fourth Amendment. When the Constitution was drafted, no individual rights were guaranteed to the people. It was simply a document outlining a new federal government that would have much more power than the old Confederacy. The fact that these rights were not guaranteed was a point of contention both during the drafting and ratification of the Constitution. Several states including Massachusetts, New York, and Virginia, had to make deals with those in their state who would not ratify without a Bill of Rights.¹

With the ratification of the Bill of Rights in 1791, individual rights to freedom of speech, religion, and more were codified at the highest level. The Constitution and the first ten amendments were trying to solve problems of their time while also trying to create a document and government that could last. This is why there are such lasting freedoms such as freedom of speech, and others that protect against soldiers squatting in one's home.² As time has gone on and more amendments have been added, the federal government has had to interpret the Constitution and its freedoms as best as possible.

Because of an early Supreme Court decision in Marbury v. Madison,³ the Supreme Court has the final say on what the Constitution means (you can read more about that here). This is how decisions are reached such as Griswold v. Connecticut that decided that the right to privacy is inferred by the language of the amendments, specifically the First, Fourth, and Fifth.⁴ Just two years later, the Court decided Katz v. United States which held that the Fourth Amendment, even without explicitly stating so, protects “people, not places” and that people have a “constitutionally reasonable expectation of privacy”. ⁵

This is the crux of digital privacy rights. The drafters of the Constitution could never have guessed what kind of communications would one day be available. Even still, the Supreme Court understood that if the Fourth Amendment protected people from "unreasonable searches and seizures" and guarantees that people will be "secure in their persons, house, and effects", that must imply that people have some kind of inherent right to privacy.⁶ Otherwise, how could people be secure? Katz's test of the "reasonable expectation of privacy" has stood the test of time as an interpretation of an implied right in the Fourth Amendment.

In order to override this "reasonable expectation of privacy" and carry out a reasonable search and/or seizure, police need to show probable cause that a crime or evidence would be found and then obtain a search warrant. This search warrant, plus some notable exceptions, are the only time that police can carry out a "reasonable" search and/or seizure. While it makes logical sense, it wasn't until 1961 that the Supreme Court ruled that evidence obtained in an illegal search or seizure was inadmissible.⁷ The Bill of Rights were written to protect regular citizens' rights against government encroachment. In an age when more and more peoples' lives are thrust into the digital world, protections must and have somewhat caught up.

A few years after setting the "reasonable expectation of privacy" test in Katz, the Supreme Court handed down an important restriction in Smith v. Maryland.⁸ Even though a person may have an expectation of privacy in something like dialing a telephone number, the police may seek to obtain that information through wiretapping and have it not count as an "unreasonable search". This is because dialing the telephone number inherently shares it with a third-party, the telephone company. Smith established this third-party doctrine that would be held mostly intact until 2018. Even now, information shared with a third-party is still not entirely protected under the Fourth Amendment.

While quite narrow, the Supreme Court's decision in Carpenter v. United States marked an important milestone in the Court addressing the "pervasive and insistent"⁹ use of cell phones. In this case, Timothy Carpenter was convicted for robbery after being given up by his accomplices. The only way that Carpenter was conclusively tied to the crime was due to location data that was pulled from his cell phone records.¹⁰ Carpenter appealed his conviction stating that the cell phone location data was obtained in violation of the Fourth Amendment. Based on the ruling in Smith, the appeals court upheld the conviction stating that Carpenter had no reasonable expectation of privacy in the information he had inadvertently shared with his cell phone company.

When the Supreme Court decided this case, they found that the amount of information now available in the digital realm necessitates a revision of the third-party doctrine. The Court found that the Fourth Amendment must protect the immense trove of location information that is revealed simply through carrying a cell phone. Carpenter could have been carrying his cell phone to church, a political rally, a doctor's office, or any other place they might expect to be private.¹¹ If the government is allowed to request this data without a warrant, the "reasonable expectation of privacy" guaranteed by the Fourth Amendment and the freedom of association guaranteed by the First are both impacted.

Carpenter's case was sent back to the lower courts in light of this finding. Unfortunately, one of those exceptions to the Fourth Amendment mentioned earlier came up. Because of the "exclusionary rule" established by the Supreme Court in Mapp v. Ohio, the government cannot use evidence obtained in violation of the Constitution. However, one of the exceptions to this is the "good-faith exception." If the police conduct a search or seizure in good faith while reasonably relying on precedence, the exclusionary rule does not apply. Even if the search or seizure is ruled unconstitutional later in an appeal, the good-faith exception still applies.¹² Because of this, Carpenter's win at the Supreme Court still spelled a loss at the lower court. The good-faith exception was used and Carpenter's 116-year prison sentence was upheld.¹³

Although a minor victory, Carpenter still shows that the Court is not blind to the influence and pervasiveness of the digital age. Even though most cases dealing with searches are resolved using the good faith exception, there is a non-zero amount that apply the factors of Carpenter to protect information shared with a third-party.¹⁴ There are several facets to Fourth Amendment law, and the digital realm is becoming the newest test of how to interpret words written in 1789 to decide issues of the modern day. This task is not easy and never has been. The digital realm challenges ideas of property rights that were so important during the Revolution and drafting of the Constitution. One can only hope that the Court interprets it in line with the main message of the Fourth Amendment, to keep people "secure."

Read the Supreme Court cases mentioned below:

Marbury v. Madison: https://supreme.justia.com/cases/federal/us/5/137/

Mapp v. Ohio: https://supreme.justia.com/cases/federal/us/367/643/

Griswold v. Connecticut: https://supreme.justia.com/cases/federal/us/381/479/

Katz v. United States: https://supreme.justia.com/cases/federal/us/389/347/

Smith v. Maryland: https://supreme.justia.com/cases/federal/us/442/735/

Davis v. United States: https://supreme.justia.com/cases/federal/us/564/229/

Riley v. California: https://supreme.justia.com/cases/federal/us/573/373/

Carpenter v. United States: https://supreme.justia.com/cases/federal/us/585/16-402/

Endnotes