Supreme Court

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”

The closely watched lawsuit alleging Spokeo, Inc., violated the Fair Credit Reporting Act (“FCRA”) may proceed, after a federal appeals court ruled — on remand from the Supreme Court — that publication of the inaccuracies alleged by the plaintiff would constitute a sufficiently “concrete” harm to give the plaintiff standing to sue in federal court. 

Twenty years ago, the Supreme Court was faced with the question of whether a federal statute that imposed a content-based restriction on online speech violated the First Amendment. That case, Reno v. American Civil Liberties Union, marked the first instance in which the Supreme Court weighed in on the role of the Internet in the marketplace of ideas, and decided affirmatively that speech on the Internet is afforded protection under the First Amendment.

Over the course of the twenty years following Reno, the Internet has changed in size, shape, and substance. In 1997, about 40 million people used the Internet and “most colleges and universities,” “many corporations,” “many communities and local libraries,” and “an increasing number of storefront ‘computer coffee shops’” provided the public access to the Internet. Today, at least 280 million Americans use the Internet, 102 million U.S. households have in-home broadband Internet access, and 225 million Americans access the Internet through their mobile device. In 1997, popular uses of the Internet included e-mail, listservs, newsgroups, chatrooms, and the “World Wide Web” (which then consisted of around 100,000 websites), but today, social media dominates, with an estimated 81% percent of Americans participating.

Despite the seismic changes to the Internet since the Reno case was decided, the Court’s views on online speech have remained largely consistent, albeit more tailored to the times. Recently, in Packingham v. North Carolina, the Court struck down a content-neutral state law that restricted sex offenders’ access to “social networking” websites, finding that it violated the First Amendment. The significance of the Packingham opinion, particularly in its partial extension of Reno, goes beyond the four corners of the Court’s holding.Continue Reading Reno at 20: The Packingham Decision and the Supreme Court on Online Speech

The Supreme Court released its highly anticipated decision yesterday in Spokeo, Inc. v. Robins, which addresses whether plaintiffs have standing to pursue statutory damages even in the absence of actual harm under the Fair Credit Reporting Act (“FCRA”).  As we previously reported, the case was expected to have significant down-stream implications for standing in privacy class action litigation, because numerous privacy-related federal laws have been construed to allow statutory damages even in the absence of actual injury (e.g., the Telephone Consumer Protection Act).
Continue Reading Supreme Court Issues Highly Anticipated Spokeo Decision

On June 22, the Supreme Court issued its decision in Los Angeles v. Patel, striking down a Los Angeles city ordinance that allowed law enforcement to inspect hotel guest registers on demand as facially unconstitutional.  Writing for a 5-4 majority, Justice Sotomayor held that the ordinance violated the Fourth Amendment by failing to provide for any form of review of search requests before hotels were forced to comply with law enforcement demands.  According to the Court, this failure was fatal to the City of Los Angeles’ argument that the ordinance satisfies the requirements for the administrative search exception to the Fourth Amendment’s warrant requirement.
Continue Reading Supreme Court Strikes Down Ordinance Authorizing Warrantless Searches of Hotel Records

In the closely-watched case of Spokeo, Inc. v Robins, the Solicitor General recently filed an amicus brief urging the Court to deny certiorari and leave in place the 9th Circuit’s holding, which could encourage the rising tide of privacy class action litigation.  The Solicitor General’s brief—coauthored by the Consumer Financial Protection Bureau—argued that the

By Lala Qadir

The Supreme Court of Canada recently issued a 4-3 decision that gave the police a green light in conducting warrantless searches of an arrestee’s cell phone as long as the search is directly related to the suspected crime and records are kept.  Over three dissenting judges that characterized mobile phones as “intensely personal and uniquely pervasive sphere of privacy,” the majority held a balance can be struck that “permits searches of cell phones incident to arrest, provided that the search—both what is searched and how it is searched—is strictly incidental to the arrest and that the police keep detailed notes of what has been searched and why.”

Canada’s high court ruling stands in stark contrast to that of the United States.  Earlier this year, the United States Supreme Court heard argument on two cell phone cases—Riley and Wurie—ultimately holding that warrantless searches of cell phones, even when held incident to an arrest, were unconstitutional unless they were subject to specific exceptions to the Fourth Amendment’s warrant requirement.
Continue Reading Canada’s Highest Court Rules That Police Can Search Cell Phone Contents After Arrest

Last week, in Comcast Corp. et. al. v. Behrend et al., the United States Supreme Court reversed the Third Circuit’s decision to certify a class of Comcast subscribers allegedly harmed due to practices of Comcast in the Philadelphia “cluster” that supposedly lessened competition and resulted in supra-competitive prices.  A 5-4 majority of the Court held