Fourth Amendment Blog Essay

Carpenter and Our Third-Party Future

Later this year, the Supreme Court will hear argument in Carpenter v. United States. The question presented is whether the government may, without a warrant and without probable cause, obtain your location information from a third party that has it (like your cell-phone provider). In Carpenter, the government learned where a criminal suspect had gone over the course of 127 days, pursuant to a court order issued under the Stored Communications Act — which only requires that the government certify the information it seeks is “relevant and material to an ongoing criminal investigation.”

Carpenter is critical on two levels. Most narrowly, as the Supreme Court recognized in Riley v. California, cell phones are “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” According to industry statistics, there are over 395 million mobile device subscriptions in the United States—not bad when you consider that there are only 326 million people. If the government wins in Carpenter, the result will be that the government can know the location of every one of those 395 million devices, on an ongoing basis or retrospectively, with no Fourth Amendment constraints whatsoever.

But the principle Carpenter could establish would be even more significant. The government’s theory of why they can get location information without a warrant or probable cause is that we share this information with cell-phone providers, and so the government’s acquisition of the information is not a “search” under the Fourth Amendment. The so-called third-party doctrine is an invention of the 1970s; in United States v. Miller, for example, the Supreme Court held that the government could acquire financial records from a bank free of the Fourth Amendment’s constraints because the depositor “takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government.” And, in Smith v. Maryland, the Court held that the government could acquire a list of the phone numbers dialed on a particular line because the customer had “assumed the risk that the company would reveal to police the numbers he dialed” and so could claim “no legitimate expectation of privacy.”

The status of the third-party doctrine today is one of the most important questions in all of criminal procedure. An enormous amount of information about us today is held by third-party network intermediaries. Network-service providers like Google, Apple, Facebook, Amazon, and Microsoft — the titans that Bruce Schneier calls the “feudal lords” of the Internet — track far more than our location, though they surely track that, too. These intermediaries know what we read online, who our friends are, and how often we talk to them; they know what our politics are, they hold all of our photos and videos, and they know what we buy; we even invite them into our homes to listen to our conversations. To be sure, Katz v. United States, which held that listening in on a telephone call is a Fourth Amendment search, makes clear that a third party’s mere transmission of information is not enough to place that information beyond the Fourth Amendment’s protection. But in many cases today, we intend the network-service providers to be far more than a conduit; we expect that they will collect and use the information we share with them. We share our location to receive restaurant recommendations and to remember where we’ve been; we share our photos so that Google can categorize, enhance, and index them; we share our contact lists so that Facebook can suggest people we might want to add to our social networks.

If the government wins in Carpenter, all of that information is available to the state without any Fourth Amendment limits whatsoever—or so the government will surely argue. To be sure, there are some modest statutory restrictions: the Stored Communications Act, as mentioned above, requires the government to articulate specific facts that demonstrate the information it seeks is “relevant and material” to a criminal investigation. But, if even that should prove too much, the government still has other ways to obtain the information. For one thing, both the civil and criminal federal rules provide broad subpoena authority to investigators — and such subpoenas are issued under incredibly loose standards. They need not be supported by probable cause and may be issued upon the mere suspicion that the law is being violated — or “even just [to obtain] assurance that it is not,” as the Supreme Court put it in United States v. Morton Salt Co. Moreover, Congress has authorized the government to issue administrative subpoenas directly (that is, without any pending litigation) in many contexts. These are judged by similarly loose standards. Perhaps most famously, the Federal Bureau of Investigation is authorized to send so-called “National Security Letters” demanding information that it asserts is relevant to ongoing intelligence or terrorism activities. To declare the vast troves of information held by network intermediaries beyond the Fourth Amendment’s reach is to declare that the government may inspect it, more or less, at will.

For better or for worse, network-service titans are a ubiquitous feature of modern life, just as cell phones are. Although our dealings with these intermediaries are “voluntary” in the contract-law sense, it is nonetheless impossible as a practical feature of modern life to avoid them. And that may have legal as well as practical significance. At least since the Lochner era, the Supreme Court has understood there to be limits on when and under what conditions Constitutional rights may validly be bargained away; a state may not, for example, “offer” access to its highways in exchange for the surrender of rights by the corporations who need that access. Carpenter is not an unconstitutional-conditions case in the formal sense because it does not involve the government actually offering anything. (Not a bad setup: Verizon provides the service, and the government gets the waiver of Fourth Amendment rights for free.) But imagine it were. Imagine, sometime in the mid-1990s, that the Clinton administration had proposed to issue to all citizens a location-tracking device, which device could also be used to make phone calls and communicate in other interesting ways. Imagine further that the government proposed to make these devices the near-exclusive means of telephone communication (which would roughly replicate the state of affairs today). If that state of affairs would be troubling, then why should it make any difference that the bargain is administered by subcontractors?

As Richard Epstein has argued, the entire unconstitutional-conditions doctrine rests on the implicit assumption that “there is something deeply wrong” with the state offering such a bargain because it is not a genuinely consensual exchange. So, too, with the third-party doctrine. While Orin Kerr has argued that the third-party doctrine primarily is justified as a doctrine of consent, there is (as Epstein notes) no way to strike a different deal. No one argues that a “privacy clause” in a contract with Verizon would limit the government’s ability to get the location information at issue in Carpenter. If that is so, then the choice is a Hobson’s one: withdraw from modern existence, or “consent” to ubiquitous surveillance free of any Fourth Amendment rules.

The day it is decided, Carpenter will be a major case. But it may grow into the most significant criminal-procedure case of the twenty-first century. Our future is one of third-party network intermediaries. If the Fourth Amendment has nothing to say about them, then we will quickly come to discover that it does not have much to say at all.