The Carpenter decision has been the focus of many discussions since it came down last week.  In a closely watched case, a 5-4 SCOTUS ruled that police access to a person’s historical cell phone tower site records (7 days or more) is a violation of the Fourth Amendment because it violates the persons legitimate expectation of privacy. The Court held that for these records, a search warrant is mandatory.

I was hoping for a slightly different perspective than the much-written commentary on privacy and the Fourth Amendment. A little voice told me to ask for a reaction from someone who has a deep interest in the topic, Judge John Facciola. Actually, it was the not-so-little voice of Tom O’Connor who said, when I mentioned my topic, that he and Judge Facciola had engaged in numerous conversations about the declining state of privacy.  So, I thought, well what the heck, maybe he’ll talk to me about it too!

For those unfamiliar with his background, the Honorable Judge Facciola is a retired United States Magistrate Judge for the United States District Court for the District of Columbia. He is currently an Adjunct Professor at Georgetown University School of Law, an eDiscovery expert and preeminent scholar in this area of law. Oh yes, he is also a native New Yorker and a graduate of a small Catholic college in Woostah, MA, which endears him to Tom and fervent fan of The Boss, which is what really endears him to me.

So, I sent the Judge an email asking if had any comments on the case and imagine my surprise when a short time later my phone rang and it was him.  A judge! Calling me!! Wow!!!

We had a great chat and of course touched on both the Fourth Amendment and the Third-Party Doctrine. And again, a little explanation here just to set the framework for the discussion. The Fourth Amendment was part of the Bill of Rights added to the Constitution on December 15, 1791. It protects people from unlawful searches and seizures which means that the police can’t search you or your house without a warrant or some so called “exigent circumstances” (eg, an imminent threat of bodily harm) which allows them to proceed without a warrant.

The Third-Party Doctrine is a legal theory which holds that people who voluntarily give information to third parties—such as banks, phone companies, internet service providers (ISPs) or SaaS companies —have no “reasonable expectation of privacy.” The expectation of privacy is crucial to distinguishing a legitimate, reasonable police search from an unreasonable one and goes back to Katz v. United States, 389 U.S. 347(1967).

Disputes over using cell phone data to track an individual go back for years (see M. Wesley Clark, Cell Phones as Tracking Devices, 41 Val. U. L. Rev. 1413 [2007]) and Judge Facciola has long been an opponent of this trend.  As far back as January of 2006, in a case involving a broad interpretation of the PATRIOT Act expansion of the definition of “pen register,” he wrote:

It is inconceivable to me that the Congress that precluded the use of the Pen Register statute to secure in 1994 ‘transaction data’…nevertheless intended to permit the government to use that same statute…to secure the infinitely more intrusive information about the location of a cell phone every minute of every day that the cell phone was on. I cannot predicate such a counter-intuitive conclusion on the single word ‘solely.’ (In the Matter of the Application of the United States of America for an Order Authorizing the Release of Prospective Cell Site Information, 2006 WL 41229 [D.D.C. Jan. 6, 2006])

So, it came as no surprise that when speaking with Judge Facciola, he agreed with the decision in Carpenter since the Court seemed keenly aware that, as CJ Roberts stated in his opinion, we are now faced with “… an entirely different species of business record—something that implicates basic Fourth Amendment concerns about arbitrary government power much more directly than corporate tax or payroll ledgers. When confronting new concerns wrought by digital technology, this Court has been careful not to uncritically extend existing precedents. See Riley, 573 U. S., at ___ (slip op., at 10).”

The old view of the third-party doctrine must yield to new concerns about recent technology or what CJ Roberts called “the critical issue” of “basic Fourth Amendment concerns about arbitrary government power” that are “wrought by digital technology.”

Overall, the Roberts Court seems to understand electronic privacy’s importance, especially when Carpenter is coupled with the previous decisions in US v Jones (2011), which required a warrant before police placed a GPS tracker on a vehicle and Riley v California (2014) which forbade warrantless searches of a cell phone during an arrest.

First, he felt that Justice Gorsuch had a world to say in his dissenting opinion and that it truly has far reaching implications for the future of privacy.  J Gorsuch felt that the majority did not confront the third-party doctrine head-on and relied, instead, on the nature of the data in question.  His dissent was much like a concurrence on other grounds, but he felt that rather than focus on the reasonable expectation of privacy analysis, the court should have followed a property rights-based theory of the Fourth Amendment, focusing on the exact words of the amendment which speak of a search of a person’s “papers and effect.” Doesn’t that include the data a person creates and doesn’t the ban on unreasonable searches pertain to it?

Thus, with the advent of a new appointment to the Court on the horizon, the Gorsuch dissent may send a message to future defendants that the inclusion of a property-based argument will be necessary to carry the day as the Court retreats from the vague notion of an “expectation of privacy” analysis to one premised on the words of the Fourth Amendment.

In addition, the Judge notes that setting a warrant standard isn’t the end of the discussion, but the beginning.  Yes, a warrant can be issued only based on “probable cause” but it must particularize what is to be searched and seized. How will that requirement be met when the government seeks the entire contents of a digital file, whether it is a Facebook page or the GPS location now buried in my Galaxy?

I concluded by asking Judge Facciola to sit back in his chair and think it over one more time and tell me whether someday we’ll look back on this and it will all seem funny.  His reply? “The fun is just beginning.”