Redefining Voluntary: How Carpenter v. US Reveals Our Need to Reclaim Autonomy Over Our Data

By Frankie Konner (PZ ’21)

Carpenter v. US is one of the most important cases regarding the Fourth Amendment that the Supreme Court has heard in decades. The case, most likely to be decided in June 2018, focuses on the government’s right to access cell phone location data. The discussion brought about by Carpenter v US includes important issues such as the role precedents from the last 50 years play as technology evolves and how the definition of privacy in the information age has transformed.

Between 2010 and 2011, Timothy Carpenter committed a string of armed robberies. During the investigation of his case, one of his co-conspirators gave his phone number to the government, who contacted his phone carrier and requested his location data over the time period during which the robberies occurred. The government was able to track his location and confirm his connection to the robberies, leading to his conviction of 116 years in prison.

Unbeknownst to most smartphone owners, the location services of smartphone technology that allow us to use functions such as google maps also alert our phone carriers when our phones come within a certain distance of a cell tower. This effectively allows phone  carriers to track most of our movements. Carpenter, with the legal defense of the ACLU argued that his Fourth Amendment right to privacy was violated by the government’s unwarranted search of his location data.

Despite the unprecedented nature of the facts of this case, the briefs and oral argument referenced many relevant Fourth Amendment precedents. Their inapplicability to Carpenter’s case highlighted the ways in which technology has rapidly evolved.

The 1979 case Smith v. Maryland is the precedent that the Carpenter decision is most focused on. The Court ruled that the government had the Constitutional right to obtain data about the defendant’s call history and, as the result of his incessant calling of his victim’s home, connect him to a robbery.

Smith inspired the Third Party Doctrine, which states that individuals do not have expectation of privacy regarding information voluntarily disclosed to a third party such as a bank or phone company. How well this doctrine has aged, however, is open to debate. Justice Sotomayor recently expressed her doubts about its efficacy in the modern age. Further,many lawyers and scholars have argued that a doctrine written before the time of e-mail could not possibly account for technology’s ubiquity today.

The most crucial term in the Third Party Doctrine is “voluntarily.”  We provide so much information about ourselves, knowingly and unknowingly, to so many different sources in an average day that the notion of voluntary is obsolete. One might explicitly volunteer their mortgage information to a bank, but are they regularly volunteering their location to phone companies simply by owning a smartphone? Does the option exist to turn off tracking devices in smartphones, and is this option made clear to users?  Cell phones are now so incorporated into American society that it is pretty difficult to not own one nowadays, further blurring the voluntary nature of their usage.

While it is clear that legal assessment of third party interactions is inherently flawed, some lawyers argue that these interactions are a societal reality and thus must be regulated. In the Smith case, for example, it is argued that without the third party phone carrier, Smith would have been forced to harass his victim on the street or in her home, places in which he would not have an expectation of privacy. In this view, unregulated third party interactions could irresponsibly allow too much privacy.

Carpenter’s arguments presented during oral argument garnered a degree of bipartisan support. Following in the footsteps of his pro-privacy predecessor Justice Antonin Scalia, Justice Neil Gorsich posited that cell phone data is an extension of our property and is thus subject to Fourth Amendment protection. Gorsich, along with the liberal justices, argued that mass searches of cell phone location data are invasive and unreasonable. This ostensible agreement indicates that the Court will most likely rule in favor of Carpenter.

Even if the Court declares information data to be Constitutionally protected — a significant declaration — fears of data misuse should not be quelled. Major cellphone carriers in the United States, including Verizon and AT&T all release semi-annual transparency reports, indicating how many times they have provided information about user’s data to the government and under what conditions. It is clear that although a significant amount of information is provided to the government without warrants, these companies provide almost an equal amount of information when a warrant is present. After a ruling for Carpenter, the government could increase the number of warrants obtained each year and continue to use the data in criminal investigations.

Whether or not the government has unregulated access to information about our constant locations, it is alarming that this information exists at all. We technically provide information about our whereabouts or calling patterns to our carriers voluntarily, just as we voluntarily provide information about our political beliefs and our children’s lives to Facebook. We do not, however, understand how these third parties are able to use the data we provide, or exactly when we are providing it.

A ruling for Carpenter would be symbolically significant, but it cannot slow down the speed at technological advances are rendering our control over our data and privacy obsolete. While autonomy over our personal information shifts, the complicated Constitutional questions about the wealth of data that third parties posses persist. We must be vigilant in our demand for third party disclosure the accessibility, intended uses, and potential uses of our data, in order to restore some sense of autonomy over our information. Transparency should be decided by the recipient of information, not the provider, and at this time the average user of smartphones and social media is not provided with enough information about how their data is gathered or processed when they perform tasks such as refreshing their email or logging into a social media website.

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