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Bringing the Fourth Amendment into the Digital Age: Implications of Carpenter v. United States

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06.28.2018 | Legal Advisory

Last week, the Supreme Court announced a major decision interpreting the Fourth Amendment for the digital age in Carpenter v. United States. The case is a significant win for privacy advocates and a sea change in the Court’s interpretation of constitutional standards. Though Chief Justice Roberts characterizes the decision as a narrow one, its importance should not be overlooked. For the first time, the Court held that a person has a reasonable expectation of privacy in a third party’s business records.

The Carpenter decision requires that the government must obtain a search warrant signed by a judge in order to obtain information from mobile phone providers regarding users’ location data absent extraordinary circumstances. The Court’s opinion noted the pervasiveness of mobile phone location data, which grants the ability to “nearly exactly” track a mobile phone user’s movements. Indeed, mobile phones have inadvertently created a form of surveillance literally unimaginable only a generation ago. “Whoever the suspect turns out to be, [she or] he has effectively been tailed every moment of every day . . .” starting from before he or she was even under any suspicion. 

This issue is not limited to mobile phone location data. The conveniences of the digital age comes with a hidden cost – private companies hold ever increasing amounts of data tracking your movements, communications, shopping history, searches, speech, and even your desires. All of these data stores are treasure troves not only for marketers, but also for government investigators. It is for this reason that this sea change in Fourth Amendment jurisprudence is so important. Prior Supreme Court decisions have allowed the government to use mere subpoenas to obtain bank records, telephone records, credit card statements, and other business records of third parties without requiring a warrant on the theory that this information was not subject to a reasonable expectation of privacy. The Carpenter ruling will open up a series of challenges to the other pervasive record keepers of our day, such as Google and Facebook, whose platforms routinely capture comprehensive details about their users’ interests and desires.

Chief Justice Roberts, writing for the majority, quoted Justice Brandeis, who in a 1928 dissent in Olmsted v. United States, presciently implored the Court to ensure that the “progress of science” does not erode Fourth Amendment protections as “subtler and more far-reaching means of invading privacy have become available to the Government.” We at Nutter are proud that the wise words of Justice Brandeis, our firm’s co-founder, carried the day.

This advisory was prepared by Seth Berman, a partner and leader of Nutter’s Privacy and Data Security practice group, and Sa’adiyah Masoud, an associate in the firm’s Litigation DepartmentFor more information, please contact Seth, Sa'adiyah, or your Nutter attorney at 617.439.2000.

This advisory is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.

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