On Wednesday, the Supreme Court heard oral arguments in Carpenter v.  U. S., a case that involved the collection of 127 days of Petitioner Thomas Carpenter’s cell site location information as part of an investigation into several armed robberies.  We attended the argument to gain any insights into how the Supreme Court may resolve this important case.

The central issue in the appeal is whether the government can access this type and amount of individual location data without a warrant.  But an equally important issue is whether the Supreme Court should reevaluate the “third-party doctrine” exception to the Fourth Amendment’s warrant requirement in light of dramatic changes in the way individuals interact with technology in the digital era.  The “third-party doctrine” provides that individuals have no expectation of privacy in any information that is voluntarily released to a third party—a mobile-phone provider, cloud service provider, and the like.  The Court’s decision will have major implications for technology companies’ ability to protect customer data against warrantless searches by law enforcement officials.

During the 80-minute, extended oral arguments, the Justices broadly acknowledged that technology has changed dramatically in the decades since the Court originally recognized the third-party doctrine.  Each Justice, however, appeared to place varying weight on the import of that change on current legal standards.  Justices Kennedy and Alito focused on the information itself, rather than the technology, asking whether location information should be considered more sensitive than the bank information that United States v. Miller permitted law enforcement to access without a warrant, suggesting that banking information might be considered more sensitive.  
Continue Reading The Supreme Court Arguments in Carpenter Show that It May Be Time to Redefine the “Third-Party Doctrine”