After the passing of the Patriot Act, constitutional scholars bemoaned the demise of the 4th Amendment. See, e.g., Susan N. Herman, The USA Patriot Act and the Submajoritarian Fourth Amendment, 41 Harv. C.R.-C.L. L. Rev. 67, 106 (2006). The right to privacy gave way to protection against terrorism. Several three letter agencies probed us and scrutinized our actions. The TSA patted us down then put us through machines that could see through our clothes. Daniel S. Harawa , The Post-TSA Airport: A Constitution Free Zone?, 41 Pepp. L. Rev. 1, 20 (2013). The NSA listened to our telephone conversations. Glenn Greenwald, N SA Collecting Phone Records of Millions of Verizon Customers Daily . The Guardian. (June 6, 2013). The IRS monitored our banking transactions more closely. FinCen, USA Patriot Act. All of these intrusions have been tolerated on the basis that they keep us safe.
New technological advances since the Patriot Act was enacted in 2001 revived 4th Amendment interests. Third party technology providers improved Global Positioning Systems (GPS) which have the ability to track our every movement. Smart phones can now reveal to police most everything about our interests and interactions with others. The courts voice concern about privacy as we move into an era where private facts of our lives can be gleaned from slivers of data -- data which necessarily escapes our personal control.
Recent court decisions showcase the courts’ struggle to apply traditional 4th Amendment privacy protections to the new means by which people create, utilize, and store their personal information.
SEARCHING SMART PHONES
The Supreme Court recently decided a handful of cases with Fourth Amendment implications. One of those cases was Riley v. California and United States v. Wurie, 134 S. Ct. 2473 (2014), in which the Supreme Court held law enforcement must obtain a warrant before searching the content of a seized cell phone. Id. The Court explained that this type of search did not fall under the search incident to arrest exception. It further noted that modern cell phones hold the ‘privacies of life’ for many individuals. “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.” Riley, 134 S. Ct. 2495. The Court also noted that searching a cell phone could be a more substantial invasion of privacy than a physical search of the arrestee because cell phones store a wide range of information about an individual’s “private interests and activities.” Id. at 1289. Modern cell phones can also access information stored in remote locations—which are, presumably, not incident to the arrest. Id.
The Court did not rule out the possibility that case specific exceptions might justify the warrantless search of an individual’s phone but emphasized “[t]he critical point is that, unlike the search incident to arrest exception, the exigent circumstances exception requires a court to examine whether an emergency justified a warrantless search in each particular case.” Id. at 2494. Examples of exigent circumstances include addressing a threat of harm to officers or preventing the destruction of evidence.
The Supreme Court of Nebraska recently addressed a warrantless search of a cell phone seized incident to arrest in State v. Henderson, 289 Neb. 271 (Neb. 2014). In Henderson, the defendant fired shots at a house party and was intercepted by officers after a short foot chase. After he was arrested, officers seized the defendant’s cell phone and other personal effects. Before searching the phone, the officers sought a warrant. It was granted, but the judge noted he thought the warrant was unnecessary since the phone was seized incident to arrest. The defendant was subsequently convicted at trial on a number of charges.
Henderson’s appeal was pending when the Supreme Court released Riley. The Nebraska Supreme Court found that in light of Riley the lower court’s reasoning was incorrect. Id. at 285 "[A]s a general matter, the warrantless search of a cell phone seized from an arrestee is not justified as a search incident to an arrest." Id. The Court agreed with the defendant that the first warrant, which authorized a search of the cell phone's call logs, texts, voicemail and "any other information that can be gained from the internal components and/or memory cards," was not particular enough to satisfy the requirements of the Fourth Amendment. But because this error was remedied by a subsequent warrant, the Court ultimately affirmed the defendant’s conviction. While the issue of cell phone search was not dispositive in Henderson, the Court discussed and applied Riley, providing useful insight for how it might handle future cases.
TRACKING MOVEMENTS AND MEDICATIONS
Today, cell phones have GPS devices which track our movements. But law enforcement can use that same GPS technology to track the movements of suspects – even without accessing their cell phones. In United States v. Jones, 132 S. Ct. 945 (2012), for example, the issue was whether a small GPS device attached by police to the defendant’s car for over a month constituted a search within the meaning of the Fourth Amendment. The police suspected Jones of trafficking drugs and subsequently used the data obtained from the GPS to charge him with multiple drug offenses. The Court resolved the issue on a trespassory, rather than a privacy based theory. It found that since the police had physically attached the GPS device to the defendant’s car without obtaining a valid warrant, the search fell within the original meaning of the Fourth Amendment and violated the defendant’s right “to be secure in [his person], houses, papers, and effects, against unreasonable searches and seizures.” Id. at 949.
Prior to Jones, the Supreme Court’s 1967 decision in Katz had expanded the historical focus on property rights in expectation of privacy to include non-trespassory invasions of privacy. Katz v. United States, 389 U.S. 347, 361 (1967). The historical focus on property rights arose from the wording of the 4 th Amendment which recognizes the right “to be secure in [one’s person], houses, papers, and effects. In Katz, the Court introduced the reasonable expectation of privacy test and held that a person’s reasonable expectations of privacy may be violated even in the absence of a physical trespass. Justice Scalia, writing for the majority in Jones, made clear Katz augmented, rather than replaced, the common law trespassory test. Jones, 132 S. Ct. at 955.
But in resolving Jones on a trespass theory, the majority raised more questions than it answered. Miriam H. Baer, Secrecy, Intimacy, and Workable Rules: Justice Sotomayor Stakes Out the Middle Ground in United States v. Jones, 123 Yale L.J. F. 393, para. 3 (2014). For one, the rise of GPS capabilities in cars and smartphones means that non-trespassory searches are easier to accomplish. The remarkable efficiency of new technology extends the government’s reach and begs the question of when a search goes too far— and furthermore, whether a search that could have been made through traditional means by expending expensive resources nevertheless crosses a line when conducted with technology that requires only a nominal expenditure of time or effort. See, e.g ., Jones, 132 S. Ct. at 963-64.
In addition to ease of access, GPS monitoring produces a “precise and comprehensive” record of public movement that discloses details about familial, political, professional, religious, and sexual associations. Id. at 955 (Sotomayor, J., concurring). Justice Sotomayor stated:
“I would raise the question whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. . . . The net result is that GPS monitoring--by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track--may “alter the relationship between citizen and government in a way that is inimical to democratic society.” Id. at 955-56.
Justice Sotomayor further noted that it may be time to reconsider the third party doctrine, under which a person does not have a reasonable expectation of privacy in information she or he voluntarily discloses to third parties. “This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” Id. at 957.
Similarly, in his concurring opinion, Justice Alito noted that even the “reasonable expectation of privacy” test expounded in Katz is a fluid, rather than fixed standard. Id. at 962 (Alito, J., concurring). “New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable.” Id. (emphasis added).
While Nebraska has not addressed electronic tracking of movements, it has addressed electronic monitoring of medications. State v. Wiedeman, 286 Neb. 193, 207-208 (2013). In Wiedeman, the defendant had obtained prescriptions for controlled narcotic prescriptions from multiple providers, in excess of the amount she should have been taking. On appeal, she claimed that her prescription records should not have been introduced to evidence because they were seized in a warrantless search. Id. at 202. Nebraska requires pharmacies to track the prescriptions that people obtain and store those records for 5 years. Id. at 206. Those records must be kept confidential and only disclosed to persons authorized by the statute, including “governmental agencies authorized by law to receive such information.” Id.
The Court upheld the warrantless investigatory search of these records on two grounds. First, it held the defendant “had no ownership or possessory interest in the pharmacies from where the records were obtained. And, even though they may concern [him], the prescription records are not [his personal] effects or papers.” Id. Second, in light of the state’s interest in preventing the misuse of prescription narcotics, the court noted that a person “knows or should know that the State, which outlaws the distribution and use of such drugs without a prescription, will keep careful watch over the flow of such drugs from pharmacies to patients.” Id. at 209. Thus because the records are owned by the pharmacy, rather than the patient, and because there is no reasonable expectation that the government will not search those records, the Court held that warrantless investigatory searches of the electronic medication database do not violate a person’s 4th Amendment rights. This finding has interesting implications given the growing use of cloud data storage, a situation in which consumers necessarily rely on third parties to store their personal information.
Justice Sotomayor’s concurring opinion in Jones touches on important privacy challenges arising from consumers’ use of new technologies--concerns that have yet to be decided by the Supreme Court. In the opinion, Justice Sotomayor calls for the court to reconsider the role of the Katz reasonable expectation test and the applicability of the third party doctrine to modern times. The concurrence has been noted by some academics for suggesting a sensible approach to Fourth Amendment rights in an increasingly electronic world. Miriam H. Baer, Secrecy, Intimacy, and Workable Rules: Justice Sotomayor Stakes Out the Middle Ground in United States v. Jones, 123 Yale L.J. F. 393.
Given the pervasive and growing use of technology, as well as the depth of personal information people voluntarily disclose in order to access and use that technology, concern about the third party doctrine is not unfounded. The third party doctrine states that a person has no reasonable expectation of privacy in information voluntarily disclosed to a third party. Jones, 132 S. Ct. at 957. See e.g., United States v. Miller, 425 U.S. 435 (1976); Smith v. Maryland, 442 U.S. 735 (1979). In particular, a person has no Fourth Amendment protection from warrantless searches by the government of this type of information, even if it was disclosed for a limited purpose, such as to a bank depositor. Under the third party doctrine the government may use administrative subpoenas to receive an individual’s personal information from a third party. Christopher Slobogin, Subpoenas and Privacy, 54 DePaul L. Rev. 805 (2005).
The Supreme Court’s decision in Riley in 2014 cites the Sotomayor concurrence, providing an indication the Court is aware of privacy concerns posed by the third party doctrine in light of how people interact with new technologies. This old doctrine provides little protection for emails or for information stored in the Cloud, instances in which users must necessarily entrust their personal information to third party servers and businesses. Ryan Watzel, Riley’s Implications for Fourth Amendment Protection in the Cloud, 124 Yale L.J. F. 73 (2014). In this modern paradigm, the third party acts as a mere conduit for, rather than true recipient of the information. Id. As a result, the time may be right for the Supreme Court to reconsider the place of the third party doctrine in modern jurisprudence.
Technology allows our government to perform its duties more safely, accurately, and efficiently. But the ease with which technology allows law enforcement to perform extensive searches into the private details of our lives warrants caution.
Recent court decisions recognize this tension, as well as the evolution of traditional privacy expectations in modern times. The approach of tying 4th Amendment protections from search and seizure to an individual’s property rights gave way to the reasonable expectation test in 1967. The Supreme Court’s return to the trespassory approach in Jones (2012) revealed elasticity in the reasonable expectation test. As people become accustomed to sharing their private information as a necessary condition precedent to the use of new technologies, their ‘reasonable expectations’ may change. Thus, even a standard based on reasonable expectation may not be able to provide an ‘ideal’ level of protection yet what this ‘ideal’ may be is yet to be determined. The Court seems unsure of where or how to find a bright line test to say when search and seizure made with new technologies goes “too far.” It is clear, however, that the Court is cognizant of these concerns. And rather than allow technological advances to subtly obliterate modern expectations of privacy, the Court has responded by breathing new life into the 4th Amendment.