PVAMU Fourth Amendment and the Third-Party Doctrine in the Digital Age Report

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I need 3 pages (front and back).PLEASE Read the syllabus page 3 Major Course Requirements the (first column “10 Reaction Papers” how to write the reaction paper.The professor will count how many page number are in the writing, he is requesting 11 or more; anything less than 11, grade will be impacted.

Reaction Paper Assignment #2 - A Descriptive Analysis of the Fourth Amendment and the Third-Party Doctrine in the Digital Age! – you can access the reading from the link attached

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A DESCRIPTIVE ANALYSIS OF THE FOURTH AMENDMENT AND THE THIRDPARTY DOCTRINE IN THE DIGITAL AGE Peter C. Ormerod† Lawrence J. Trautman* B.A. (magna cum laude), The George Washington University; J.D., The George Washington University Law School. Mr. Ormerod is an adjunct professor of business law at Western Carolina University. He may be contacted at ormerod.peter@gmail.com. † B.A., The American University; MBA, The George Washington University; J.D., Oklahoma City University School of Law. Mr. Trautman is Assistant Professor of Business Law and Ethics at Western Carolina University. He may be contacted at Lawrence.J.Trautman@gmail.com. * The authors wish to extend particular thanks to Orin Kerr and Stephen Henderson. All errors and omissions are our own. ABSTRACT There are few areas of constitutional law that raise scholars’ ire and trouble jurists like the Fourth Amendment’s third-party doctrine. Making sense of the Court’s distinctions between content and metadata and between personal communications and business records was already difficult with physical documents and analog technologies. But the proliferation of digital technologies has rendered obsolete the factual predicates underpinning those distinctions, and courts have struggled mightily with adapting third-party rules forged over thirty years ago to new technologies. At the same time, the Supreme Court has become more explicit in fashioning distinct Fourth Amendment rules for digital 73 Electronic copy available at: https://ssrn.com/abstract=3005714 74 ALB. L.J. SCI. & TECH. [Vol. 28.2 technologies. In a trio of 21st-century decisions, the Court has made clear—often by overwhelming votes—that the old rules no longer suffice. These two strains of Fourth Amendment law are on a collision course—a collision scheduled for the Court’s October 2017 Term. In June 2017, the Court granted certiorari in Carpenter v. United States, and the question presented is whether the government needs a probable cause warrant to obtain voluminous records about a cell phone’s location—data termed cell site location information (CSLI)—from a wireless provider. In this article, we first review the Court’s 21st-century digital Fourth Amendment jurisprudence to tease out the Court’s differential treatment of digital technologies. We then turn to the existing third-party doctrine and attempt to make sense of the doctrine’s distinctions between content and metadata and between personal communications and business records. We examine how our understanding of the existing doctrine applies to digital information like the CSLI at issue in Carpenter. We conclude by reviewing some types of sensitive digital information that potentially lack Fourth Amendment protection under current doctrine. Keywords: browsing history, Carpenter v. United States, cell phones, cell phone search, cell site locational information (CSLI), cloud computing, constitutional law, digital data, Fourth Amendment, Internet, iPhone, United States v. Jones, Katz v. United States, Kyllo v. United States, location data, metadata, United States v. Miller, privacy, Riley v. California, search incident to arrest, Smith v. Maryland, Stored Communication Act, Supreme Court, third-party doctrine, United States v. Wurie JEL Classifications: ABSTRACT ............................................................................. 73 INTRODUCTION ................................................................... 76 I. TRADITIONAL FOURTH AMENDMENT SEARCH ANALYSIS ........................................................................ 78 A. The Trespass Test ....................................................... 78 B. The Katz Reasonable Expectation of Privacy Test ... 80 C. Pre-Digital Technologies: Airborne Observation Cases............................................................................ 81 D. Fourth Amendment Searches: The Element of Surprise and the Probabilistic Model ........................ 83 II. THE COURT’S ARPROACH TO THE FOURTH Electronic copy available at: https://ssrn.com/abstract=3005714 2018] FOURTH AMENDMENT IN THE DIGITAL AGE AMENDMENT AND DIGITAL TECHNOLOGIES ........ 85 A. Kyllo v. United States (2001) ..................................... 86 1. Facts of Kyllo ......................................................... 86 2. The Court’s Opinion .............................................. 88 B. United States v. Jones (2012)..................................... 90 1. Facts of Jones ........................................................ 90 2. The Applicability of the Court’s Decision in Knotts ..................................................................... 92 3. The D.C. Circuit and the Supreme Court Majority’s Opinions ............................................... 93 4. Justice Alito’s Opinion .......................................... 95 5. Justice Sotomayor’s Opinion ................................ 97 C. Riley v. California and United States v. Wurie (2014) ......................................................................... 100 1. Facts of Riley and Wurie ..................................... 101 2. Search Incident to Arrest Precedents ................ 103 3. The Court’s Opinion ............................................ 105 III. THE THIRD-PARTY DOCTRINE ................................. 110 A. Origins: Informants, Miller, and Smith................... 111 B. Limits to the Third-Party Doctrine with Physical Spaces and Materials.............................................. 1144 C. Content Versus Metadata and Personal Communications Versus Business Records ............. 116 IV. THE STORED COMMUNICATIONS ACT ................... 119 A. Overview of the SCA ................................................. 120 B. Compelling Non-Content Records ............................ 120 C. Compelling Content Records .................................... 121 1. Statutory Framework for Compelling Content . 121 2. The Constitutionality of Compelling Content Under the SCA .................................................... 123 V. CARPENTER AND OTHER LOWER-COURT CSLI DECISIONS .................................................................... 126 A. Facts and Decision Below in Carpenter v. United States ......................................................................... 127 B. Other Circuit Court Decisions Concerning CSLI .... 132 VI. A DESCRIPTIVE ANALYSIS OF THE THIRD-PARTY DOCTRINE ..................................................................... 134 A. Voluntary Conveyance and CSLI ............................. 135 1. Voluntary Conveyance ........................................ 135 2. A Middle Ground: Most CSLI Is Involuntarily Conveyed ............................................................. 139 B. Participants Versus Intermediaries ...................... 1411 Electronic copy available at: https://ssrn.com/abstract=3005714 75 76 ALB. L.J. SCI. & TECH. [Vol. 28.2 C. Resolving Carpenter and Issues for Further Discussion ................................................................. 145 CONCLUSION ..................................................................... 149 INTRODUCTION On June 5, 2017, the U.S. Supreme Court granted a writ of certiorari in Carpenter v. United States.1 Carpenter asks whether the government needs a probable cause warrant to obtain voluminous records of a cell phone’s location data, which is known as cell site location information (CSLI).2 According to Professor Orin S. Kerr, a foremost expert on the Fourth Amendment, the Court’s grant in Carpenter is “a momentous development,” because “the future of surveillance law hinges on how the Supreme Court rules.”3 The government currently does not need a probable cause warrant to obtain CSLI from a telecommunication provider. Section 2703(d) of the Stored Communications Act (SCA) provides that the government may compel disclosure of CSLI whenever the government offers “specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.”4 And the government uses this authority: In 2016 alone, AT&T Wireless received over 50,000 requests for historic cell phone location data.5 The facts of Carpenter starkly demonstrate the scope of information the government has authority to compel without a warrant—in this case, 127 days of the defendant’s CSLI, about four months.6 Carpenter implicates the third-party doctrine—the rule that 1 819 F.3d 880 (6th Cir. 2016), cert. granted, 137 S. Ct. 2211 (No. 16–402) (2017). 2 Petition for Writ of Certiorari at i, 6, Carpenter v. United States, 137 S. Ct. 2211 (No. 16-402) [hereinafter Carpenter Cert. Petition]. 3 Orin S. Kerr, Supreme Court agrees to hear ‘Carpenter v. United States,’ the Fourth Amendment historical cell-site case, THE WASHINGTON POST (June 5, 2017), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/05/ supreme-court-agrees-to-hear-carpenter-v-united-states-the-fourth-amendmenthistorical-cell-site-case/. 4 Required Disclosure of Customer Communications or Records, 18 U.S.C.A. § 2703 (West, Westlaw through P.L. 115-117 approved 1/12/18). 5 See AT&T FEBRUARY 2017 TRANSPARENCY REPORT 4 (2017) (showing the data for cell towers for January-June and July-December periods). 6 Carpenter Cert. Petition, supra note 2, at i; 16-402 Carpenter v. United States (2017), https://www.supremecourt.gov/qp/16-00402qp.pdf. Electronic copy available at: https://ssrn.com/abstract=3005714 2018] FOURTH AMENDMENT IN THE DIGITAL AGE 77 people lack a reasonable expectation of privacy in information that third parties possess or know.7 The third-party doctrine is one of the most widely disparaged constitutional rules still in force,8 and not a single member of the current Court has participated in a decision that expressly applied the doctrine.9 Making sense of the Court’s distinctions between content and metadata and between personal communications and business records was already difficult with physical documents and analog technologies. The rapid proliferation of digital technology has made the task Herculean—rendering the rule’s factual predicates obsolete and creating a vast cache of sensitive information only a subpoena away. While the Court has studiously avoided addressing the viability of the third-party doctrine in the 21st century, the Court has become more explicit in fashioning distinct Fourth Amendment rules for digital technologies like thermal imaging cameras, GPS trackers, and smartphones seized incident to arrest. In this article, we first examine this digital Fourth Amendment jurisprudence and then try to make sense of how the third-party doctrine applies to data like Timothy Carpenter’s CSLI. With the Court poised to address the constitutional contours of electronic surveillance law, we seek to provide helpful context about one of the most important cases of the Court’s October 2017 term—and raise questions about the Fourth Amendment status of other types of sensitive digital data. This article has six parts. In part one, we describe the Court’s traditional approach to Fourth Amendment searches. In the second part, we discuss the Court’s recent decisions that suggest the Fourth Amendment applies differently to digital technologies. In part three, we describe the third-party doctrine. In the fourth section, we explain the Stored Communications Act’s statutory framework. In part five, we relate the facts and the Sixth Circuit’s opinions in Carpenter case, and we review other cases addressing how the Fourth Amendment applies to CSLI. Part six is our descriptive analysis: We explain how we interpret the current 7 Daniel J. Solove, A Taxonomy of Privacy, 154(3) U. PA. L. REV. 477, 526 (2006). 8 See Orin S. Kerr, The Case for the Third-Party Doctrine, 107 MICH. L. REV. 561, 563–64 (2009) [hereinafter Kerr, Third-Party Doctrine] (reflecting that many scholars and state courts have begun rejecting this doctrine). 9 Stephen E. Henderson, Carpenter v. United States and the Fourth Amendment: The Best Way Forward, WM. & MARY BILL RTS. J. (forthcoming) [hereinafter Henderson, The Best Way Forward]. Electronic copy available at: https://ssrn.com/abstract=3005714 78 ALB. L.J. SCI. & TECH. [Vol. 28.2 third-party doctrine and how the Court might apply that standard to CSLI. We conclude with a brief survey of other types of data that current doctrine does not protect. I. TRADITIONAL FOURTH AMENDMENT SEARCH ANALYSIS This section describes the traditional approach to the Fourth Amendment. We begin by discussing the ways the government conducts a search and then review how the Court responded to predigital technological advances in the 20th century. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”10 The current understanding of the two ways the government performs a Fourth Amendment search is based on the 2012 case United States v. Jones:11 First, by physically trespassing on a suspect’s property for the purpose of obtaining information, and second, by violating the “reasonable expectation of privacy” standard from Justice Harlan’s concurrence in Katz v. United States.12 A. The Trespass Test The Jones majority made clear that Justice Harlan’s Katz test did not extinguish the pre-Katz rule: “The Katz reasonableexpectations test ‘has been added to, not substituted for,’ the traditional property-based understanding of the Fourth Amendment.”13 Under this property-based approach, the government performs a Fourth Amendment search when its agents physically intrude on a suspect’s private property for the U.S. CONST. amend. IV. United States v. Jones, 565 U.S. 400 (2012). 12 389 U.S. 347 (1967); see also Nita A. Farahany, Searching Secrets, 160(5) U. PA. L. REV. 1239, 1246 (2012) (defining the “two-pronged privacy test”); Aya Gruber, Garbage Pails and Puppy Dog Tails: Is that What Katz is Made of?, 41 U.C. DAVIS L. J. 781, 785–86 (2008) (describing whether a search and seizure implicates the Fourth Amendment); Mary G. Leary, Katz on a Hot Tin Roof— Saving the Fourth Amendment from Commercial Conditioning by Reviving Voluntariness in Disclosures to Third Parties, 50 AM. CRIM. L. REV. 341, 342 (2013) (describing the Katz tests); Katherine J. Strandburg, Home on the Web and Other Fourth Amendment Implications of Technosocial Change, 70 MD. L. REV. 101 (2011) (discussing Katz); Marc J. Blitz, Stanley in Cyberspace: Why the Privacy Protection of the First Amendment Should Be More Like that of the Fourth, 62 HASTINGS L.J. 357, 363 (2010) (further discussing Justice Harlan’s rationale). 13 Florida v. Jardines, 569 U.S. 1, 11 (2013) (quoting Jones, 565 U.S. at 409). 10 11 Electronic copy available at: https://ssrn.com/abstract=3005714 2018] FOURTH AMENDMENT IN THE DIGITAL AGE 79 purpose of obtaining information.14 Hence, in 1928’s Olmstead v. United States,15 the Court held that the government did not perform a search when agents attached wiretaps to telephone wires on public streets because “[t]here was no entry of the houses or offices of the defendants.”16 And in Jones itself, where government agents physically placed a GPS tracker on the underside of the suspect’s automobile, the Court said: “The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”17 The Court also applied the trespass test in 2013’s Florida v. Jardines.18 In Jardines, law enforcement brought a drug-sniffing dog onto the porch of the defendant’s home.19 The dog indicated that it detected an illegal substance after sniffing the base of the defendant’s front door.20 On that basis, the officers obtained a search warrant for the defendant’s home, which revealed marijuana plants.21 The Court held that the use of a drug-sniffing dog on the defendant’s porch was a warrantless search because the “officers were gathering information . . . in the curtilage of the house, which we have held enjoys protection as part of the home itself,”22 and because the officers “gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.”23 14 See Jones, 565 U.S. at 420–21. In response to Justice Alito’s concurrence, Justice Scalia is explicit that a trespass alone does not suffice: “Trespass alone does not qualify, but there must be conjoined with that what was present here: an attempt to find something or to obtain information.” Id. at 408 n.5. Similarly, Justice Scalia distinguishes the curtilage of a home from an open field: “[T]he Government’s position gains little support from our conclusion in Oliver v. United States, 466 U. S. 170 . . . (1984), that officers’ information-gathering intrusion on an ‘open field’ did not constitute a Fourth Amendment search even though it was a trespass at common law . . . . Quite simply, an open field, unlike the curtilage of a home . . . is not one of those protected areas enumerated in the Fourth Amendment.” Id. at 410–11. 15 277 U.S. 438 (1928). 16 Id. at 464. 17 Jones, 565 U.S. at 404–05. 18 569 U.S. 1 (2013). 19 Id. at 3–4. 20 Id. at 4. 21 Id. 22 Id. at 5–6. 23 Id. at 6. Electronic copy available at: https://ssrn.com/abstract=3005714 80 ALB. L.J. SCI. & TECH. [Vol. 28.2 Justice Scalia’s majority opinion explicitly premised its conclusion on only trespass grounds: “[W]e need not decide whether the officers’ investigation of [the defendant’s] home violated his expectation of privacy under Katz. . . . That the officers learned what they learned only by physically intruding on [the defendant’s] property to gather evidence is enough to establish that a search occurred.”24 B. The Katz Reasonable Expectation of Privacy Test Far murkier than the bright-line trespass test is Justice Harlan’s two-factor standard from Katz. There, government agents placed listening devices on the top of public pay phones to eavesdrop on the defendant’s conversations.25 While no physical trespass occurred, the Court nonetheless held that the government had violated the defendant’s Fourth Amendment rights.26 In his concurrence, Justice Harlan provided what has since become the rule: “[T]here is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’”27 Or as the Court put it in Bond v. United States28: “First, we ask whether the individual, by his conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that he sought to preserve something as private. . . . Second, we inquire whether the individual’s expectation of privacy is one that society is prepared to recognize as reasonable.”29 The touchstone for determining whether the government has conducted a Fourth Amendment search is the point at which the government exposes or obtains information that someone has reasonably sought to keep private.30 Fourth Amendment searches, 24 Jardines, 569 U.S. at 11. In contrast, Justice Kagan’s concurring opinion— which Justice Ginsburg and Justice Sotomayor joined and whose three votes were all necessary to Justice Scalia’s five-vote majority—argued that the police violated both the trespass test and Katz’s reasonable expectation of privacy test: “Was this activity a trespass? Yes, as the Court holds today. Was it also an invasion of privacy? Yes, that as well. The Court today treats this case under a property rubric; I write separately to note that I could just as happily have decided it by looking to Jardines’ privacy interests. A decision along those lines would have looked . . . well, much like this one.” Id. at 13 (Kagan, J., concurring). 25 Katz, 389 U.S. at 348. 26 Id. at 353. 27 Id. at 361 (Harlan, J., concurring). 28 529 U.S. 334 (2000). 29 Id. at 338 (internal quotation marks omitted). 30 Orin S. Kerr, The Mosaic Theory of the Fourth Amendment, 111(3) MICH. L. Electronic copy available at: https://ssrn.com/abstract=3005714 2018] FOURTH AMENDMENT IN THE DIGITAL AGE 81 in short, often contain an element of surprise. The Court has held that the government conducts a Fourth Amendment search when its agents expose or obtain information from inside a home,31 a car,32 a package,33 and a person’s pockets.34 In contrast, the government does not conduct a search when its agents merely observe the outside of property,35 observe something in plain view,36 or observe something from a perspective frequented by the public.37 C. Pre-Digital Technologies: Airborne Observation Cases This latter example is worth further exploration. In three cases from the 1980s, the Court considered how technology-enabled human flight has impacted Fourth Amendment expectations of privacy.38 We term these decisions the “airborne observation cases,” and they have particular relevance in our discussion of Kyllo, infra. In California v. Ciraolo,39 the police received an anonymous tip that the defendant was growing marijuana in his backyard.40 Unable to confirm the tip from the ground level due to a tall fence encasing the backyard, two officers “secured a private plane and flew over [the defendant’s] house at an altitude of 1,000 feet, within navigable airspace.”41 From this perspective, the officers identified marijuana plants growing in his backyard and photographed the area with a 35mm camera.42 The defendant challenged a warrant issued on the basis of the airborne observations, but the Court rejected his arguments that the Fourth Amendment forbade evidence collection by technologically- REV. 311, 316–17 (2012) [hereinafter Kerr, Mosaic Theory]. 31 See, e.g., Silverman v. United States, 365 U.S. 505, 511 (1961). 32 See, e.g., United States v. Ross, 456 U.S. 798, 807–09 (1982). 33 See, e.g., United States v. Jacobsen, 466 U.S. 109, 114 (1984). 34 See, e.g., Minnesota v. Dickerson, 508 U.S. 366, 378 (1993). 35 See, e.g., New York v. Class, 475 U.S. 106, 114 (1986). 36 See, e.g., Katz, 389 U.S. at 361 (Harlan, J., concurring) (explaining that the government has not violated a reasonable expectation of privacy when discovering what a person has “expose[d] to the ‘plain view’ of outsiders”). 37 See, e.g., California v. Ciraolo, 476 U.S. 207, 213–14 (1986); Florida v. Riley, 488 U.S. 445, 450 (1989). 38 California v. Ciraolo, 476 U.S. 207; Dow Chemical v. United States, 476 U.S. 227 (1986); Florida v. Riley, 488 U.S. 445. 39 476 U.S. 207 (1986). 40 Id. at 209. 41 Id. 42 Id. Electronic copy available at: https://ssrn.com/abstract=3005714 82 ALB. L.J. SCI. & TECH. [Vol. 28.2 enabled human flight: “The observations . . . took place within public navigable airspace . . . in a physically nonintrusive manner [and] . . . [a]ny member of the public flying in this airspace who glanced down could have seen everything that these officers observed.”43 In Dow Chemical v. United States,44 federal regulators—denied access to inspect an industrial complex—employed a commercial aerial photographer, who used a “standard floor-mounted, precision aerial mapping camera, to take photographs of the facility from altitudes of 12,000, 3,000, and 1,200 feet.”45 As in Ciraolo, the aircraft was at all times lawfully within navigable airspace.46 Relying on Ciraolo, the Court rejected the complex owner’s Fourth Amendment challenge.47 The Court suggested that “surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant.”48 But, the Court held, the technology employed here did not cross that threshold: “[T]he photographs here are not so revealing of intimate details as to raise constitutional concerns.”49 In Florida v. Riley,50 the police received a tip that the defendant was growing marijuana in a partially-enclosed greenhouse behind his home.51 When an investigating officer discovered it was not possible to see inside the greenhouse from the ground level, he circled twice over the property in a helicopter at an altitude of 400 feet.52 From that perspective, the officer made naked-eye observations of marijuana plants inside the greenhouse, and a subsequent search—executed pursuant to a search warrant obtained on the basis of the officer’s observations—revealed marijuana plants growing inside the greenhouse.53 Justice White’s plurality opinion held: “Here, the inspection was made from a helicopter, but as is the case with fixed-wing planes, ‘private and Id. at 213–14. 476 U.S. 227 (1986). 45 Id. at 229. 46 Id. 47 Id. at 234–36, 239. 48 Id. at 238. 49 Id. 50 488 U.S. 445 (1989). 51 Id. at 448. We refer to this 1989 case as “Florida v. Riley,” and we refer to 2014’s Riley v. California, 134 S. Ct. 2473 (2014), as merely “Riley.” 52 Id. 53 Id. at 448–49. 43 44 Electronic copy available at: https://ssrn.com/abstract=3005714 2018] FOURTH AMENDMENT IN THE DIGITAL AGE 83 commercial flight [by helicopter] in the public airways is routine’ in this country, and there is no indication that such flights are unheard of in [the defendant’s jurisdiction].”54 Justice O’Connor’s concurring opinion—which was necessary to the judgment—explained that the defendant in Ciraolo did not have a reasonable expectation of privacy “not because the airplane was operating where it had a ‘right to be,’ but because public air travel at 1,000 feet is a sufficiently routine part of modern life that it is unreasonable” to expect that property “will not be observed from the air at that altitude.”55 Note that her framing of the issue differs from Chief Justice Burger’s in both Ciraolo and Dow Chemical: The government’s aircrafts in those cases were “lawfully within navigable airspace” under local law.56 Here, however, Justice O’Connor argued that “[i]f the public rarely, if ever, travels overhead at such altitudes, the observation cannot be said to be from a vantage point generally used by the public and [the defendant] cannot be said to have ‘knowingly exposed’ his greenhouse to public view.”57 Indeed, Justice Blackmun’s dissent recognized that five justices agreed “the reasonableness of [the defendant’s] expectation depends, in large measure, on the frequency of nonpolice helicopter flights at an altitude of 400 feet.”58 D. Fourth Amendment Searches: The Element of Surprise and the Probabilistic Model Justice O’Connor’s approach was later adopted by a sevenjustice majority in Bond v. United States.59 In Bond, the defendant was riding a Greyhound bus from California to Arkansas.60 At a required checkpoint stop in Texas, a federal border patrol agent boarded the bus to check the immigration status of the passengers.61 Satisfied the passengers were lawfully in the country, the agent began to exit the bus, and along the way, he Id. at 450 (quoting Ciraolo, 476 U.S. at 215). Id. at 453 (O’Connor, J., concurring). 56 Dow Chemical v. United States, 476 U.S. at 229; see also Ciraolo, 476 U.S. at 213 (“The observations . . . in this case took place within public navigable airspace.”). 57 Florida v. Riley, 488 U.S. at 455 (O’Connor, J., concurring) (internal quotation marks and alterations omitted). 58 Id. at 467 (Blackmun, J., dissenting). 59 Bond v. United States, 529 U.S. 334. 60 Id. at 335. 61 Id. 54 55 Electronic copy available at: https://ssrn.com/abstract=3005714 84 ALB. L.J. SCI. & TECH. [Vol. 28.2 began squeezing the soft luggage that passengers had placed in the overhead storage compartments.62 The agent squeezed a soft canvas bag above the defendant’s seat and felt a “brick-like” object.63 The defendant admitted the bag was his and agreed to allow the agent to open it; this further inspection led the agent to discover a “brick” of methamphetamine inside.64 The defendant argued that the government had violated a reasonable expectation of privacy when the agent manipulated his bag to ascertain information about its contents, and the government responded by arguing it was objectively unreasonable to expect that other people would not touch his bag.65 The Court ruled for the defendant, reasoning: [A] bus passenger clearly expects that his bag may be handled. He does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner. But this is exactly what the agent did here. We therefore hold that the agent’s physical manipulation of petitioner’s bag violated the Fourth Amendment.66 Importantly, the Court’s formulation of a reasonable expectation of privacy did not hinge on what other passengers or bus employees could do or what they might do—but rather what they might actually do.67 Or, as articulated by D.C. Circuit Judge Ginsburg in Jones, the GPS tracking case: “[W]hether something is ‘expose[d] to the public,’ . . . depends not upon the theoretical possibility, but upon the actual likelihood, of discovery by a Id. Id. at 336. 64 Id. 65 Bond v. United States, 529 U.S. at 336–37. 66 Id. at 338–39. 67 But see Illinois v. Caballes, 543 U.S. 405 (2005) (holding that the use of a drug-sniffing dog to ascertain whether the trunk of the defendant’s car contained marijuana was not a Fourth Amendment search). Some of the language in Caballes is indeed difficult to reconcile with Bond. In his majority opinion, Justice Stevens suggests that the likelihood that police would discover the drugs in the trunk was irrelevant to the Fourth Amendment analysis: “[T]he expectation that certain facts will not come to the attention of the authorities is not the same as an interest in privacy that society is prepared to consider reasonable.” Id. at 408– 09 (internal quotation marks omitted) (quoting Jacobsen, 466 U.S. at 122 (“The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of the authorities.”)). 62 63 Electronic copy available at: https://ssrn.com/abstract=3005714 2018] FOURTH AMENDMENT IN THE DIGITAL AGE 85 stranger.”68 Professor Kerr has termed this method of search analysis the “probabilistic model,”69 one of four different Fourth Amendment models the Court routinely picks and chooses between.70 The probabilistic inquiry “is descriptive rather than normative: it tries to assess the likelihood that a person will be observed or a place investigated based on prevailing social practices.”71 More precisely, Professor Kerr explains, the probabilistic model “protects citizens against unexpected invasions of privacy,” because when the government “collects evidence in a way that interferes with customs and social expectations, revealing what a reasonable person might expect would remain hidden, it violates a reasonable expectation of privacy.”72 II. THE COURT’S ARPROACH TO THE FOURTH AMENDMENT AND DIGITAL TECHNOLOGIES In several 21st-century decisions, the Court has suggested that distinct Fourth Amendment rules apply to digital technologies.73 68 United States v. Maynard, 615 F.3d 544, 560 (D.C. Cir. 2010) (quoting Katz, 389 U.S. at 351), aff’d sub nom. Jones, 565 U.S. 400. 69 See Kerr, Mosaic Theory, supra note 30, at 348–49 (citing Orin S. Kerr, Four Models of Fourth Amendment Protection, 60(2) STAN. L. REV. 503, 508–12 (2007) [hereinafter Kerr, Four Models]). 70 See Kerr, Four Models, supra note 69, at 506–07 (“Scholars and students of Fourth Amendment law find the current approach frustrating because the courts routinely mix and match the four models. Most Supreme Court opinions feature multiple models to varying degrees, and they often switch from model to model without recognizing the change”). Professor Kerr’s other three models are the private facts model, the positive law model, and the policy model. See id. at 506. The private facts model “asks whether the government’s conduct reveals particularly private and personal information deserving of protection” and “focuses on the information the government collects rather than how it is collected.” Id. The positive law model “considers whether the government conduct interferes with property rights or other legal standards outside the Fourth Amendment.” Id. The positive law model has effectively been codified in recent Supreme Court decisions—namely, Jones and Jardines—which have established that physical trespass is its own, free-standing standard for Fourth Amendment searches, independent of Katz’s reasonable expectation of privacy standard. The policy model is a direct inquiry into “whether the police practice should be regulated by the Fourth Amendment.” Id. 71 Id. at 508. 72 Id. at 509. 73 We do not purport to offer a comprehensive accounting of every digital technology and how the Fourth Amendment may or should apply differently to that digital technology vs. some comparable physical, mechanical, or analog technology. For our purposes, “analog technologies” are those technologies that (at least when they were first invented or implemented) convey or transmit Electronic copy available at: https://ssrn.com/abstract=3005714 86 ALB. L.J. SCI. & TECH. [Vol. 28.2 We discuss three decisions in this section: warrantlessly aiming a thermal imaging camera at a home in 2001’s Kyllo v. United States;74 the warrantless Global Positioning System (GPS) tracking of a suspect’s automobile for 28 days in 2012’s United States v. Jones;75 and warrantlessly searching a defendant’s cell phone incident to his arrest in 2014’s Riley v. California.76 A. Kyllo v. United States (2001) The Court decided Kyllo v. United States in 2001, which asked whether aiming a thermal imaging camera at a home was a Fourth Amendment search.77 Below, we relate the facts and then discuss the Court’s opinion. 1. Facts of Kyllo In 1991, federal agents began to suspect that Danny Kyllo was growing marijuana inside his home.78 Growing marijuana plants indoors typically requires high-intensity lamps, so the federal information in a physically measurable, continuous waveform, such as through electric voltage. See Analog Computer, AMERICAN HERITAGE DICTIONARY, https://www.ahdictionary.com/word/search.html?q=analog+computer&submit.x =0&submit.y=0 (“A computer in which numerical data is represented by measurable physical variables, such as electric voltage or the position of an indicator.”). Telephones, fax machines, vinyl records, VHS tapes, and radio transmitting beepers—such as the one at issue in Knotts—are prime examples of analog technologies. “Digital technologies” are those technologies that convey or transmit information in a discrete, binary format: ones and zeros. With digital technologies, information is counted, rather than measured. See Digital, AMERICAN HERITAGE DICTIONARY, https://www.ahdictionary.com/word/search.ht ml?q=digital&submit.x=0&submit.y=0 (“Relating to or being a device that can generate, record, process, receive, transmit, or display information that is represented in discrete numerical form.”). VoIP calls, scanners, CDs, DVDs, and GPS trackers are just a few examples of digital technologies, which correspond to the aforementioned analog technologies. And throughout the discussion that follows, we take “physical” to mean “[o]f or relating to material things: a wall that formed a physical barrier; the physical environment.” Physical, AMERICAN HERITAGE DICTIONARY, https://www.ahdictionary.com/word/search.html?q=phys ical&submit.x=0&submit.y=0. 74 533 U.S. 27, 29 (2001). 75 Jones, 565 U.S. at 403. 76 134 S. Ct. 2473 (2014), decided together with, United States v. Wurie (No. 13-212). 77 Kyllo v. United States, 533 U.S. at 29. 78 Id. at 29. See also Joel R. Reidenberg, Privacy in Public, 69 U. MIAMI L. REV. 141, 145 (2014); Richard Henry Seamon, Kyllo v. United States and the Partial Ascendance of Justice Scalia’s Fourth Amendment, 79 WASH. U. L. Q. 1013, 1016 (2001); David A. Sklansky, Back to the Future: Kyllo, Katz, and Common Law, 72 MISS. L.J. 143, 169–70 (2002) (for further discussion). Electronic copy available at: https://ssrn.com/abstract=3005714 2018] FOURTH AMENDMENT IN THE DIGITAL AGE 87 agents trained an Agema Thermovision 210 thermal imaging camera at Kyllo’s home on one night in January 1992.79 Thermal imaging cameras “detect infrared radiation, which virtually all objects emit but which is not visible to the naked eye,”80 and converts that radiation “into images based on relative warmth— black is cool, white is hot, shades of gray connote relative differences; in that respect, it operates somewhat like a video camera showing heat images.”81 The agents’ thermal imaging scan of Kyllo’s home “took only a few minutes and was performed from the passenger seat of [one agent’s] vehicle across the street from the front of the house and also from the street in back of the house.”82 The scan revealed that portions of Kyllo’s home were significantly warmer than his neighbors’ homes.83 A federal magistrate judge issued a search warrant for Kyllo’s home based on informants’ tips, utility bills, and the thermal imaging results.84 Execution of the search warrant revealed that Kyllo’s home hosted an indoor marijuana-growing operation with more than 100 plants.85 After the district court denied Kyllo’s suppression motion, he entered a conditional guilty plea and appealed.86 The U.S. Court of Appeals for the Ninth Circuit initially remanded for an evidentiary hearing about the intrusiveness of the agents’ thermal imaging scan of Kyllo’s home.87 The district court upheld the validity of the warrant after finding that the Agema 2010 “is a non-intrusive device” that “did not show any people or activity within the walls of the structure,” that it “cannot penetrate walls or windows to reveal conversations or human activities,” and that “[n]o intimate details of the home were observed.”88 A divided panel of the Ninth Circuit eventually affirmed.89 The Supreme Court ruled in favor of Kyllo, 5-4, holding that use of the thermal imaging camera was an unreasonable warrantless Fourth Amendment search.90 79 80 81 82 83 84 85 86 87 88 89 90 Kyllo, 533 U.S. at 29. Id. Id. at 29–30. Id. at 30. Id. Id. Kyllo, 533 U.S. at 30. Id. Id. Id. United States v. Kyllo, 190 F. 3d 1041, 1047 (9th Cir. 1999). Kyllo, 533 U.S. at 40. Electronic copy available at: https://ssrn.com/abstract=3005714 88 ALB. L.J. SCI. & TECH. [Vol. 28.2 2. The Court’s Opinion The analysis portion of Justice Scalia’s majority opinion begins by observing that technological advances have undoubtedly affected the degree of privacy secured by the Fourth Amendment.91 In support of that proposition, Justice Scalia cites Ciraolo, discussed above, which recognized that “technology enabling human flight has exposed to public view (and hence, we have said, to official observation) uncovered portions of the house and its curtilage that once were private.”92 Justice Scalia frames the issue in Kyllo in terms of “what limits there are upon this power of technology to shrink the realm of guaranteed privacy.”93 Within the framework of Katz’s reasonable-expectation-ofprivacy test, Justice Scalia’s majority opinion held: “We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area’ . . . constitutes a search—at least where (as here) the technology in question is not in general public use.”94 The Court rejected arguments advanced by the government and the dissent that sought to downplay the intrusiveness of this particular thermal imaging scan: A contrary holding “would leave the homeowner at the mercy of advancing technology—including imaging technology that could discern all human activity in the home. While the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or in development.”95 Perhaps the narrowest reading of Kyllo focuses on two aspects of how this case is distinct from Dow Chemical. The first aspect is the police’s target: In Kyllo, the government used technology to obtain otherwise inaccessible information about the inside of a home,96 whereas the information in Dow Chemical was “an industrial complex, which does not share the Fourth Amendment sanctity of the home.”97 The Court pointedly noted: “In the home, our cases show, all details are intimate details, because the entire 91 92 93 94 95 96 97 Id. at 33–34. Id. at 34. Id. Id. (quoting Silverman v. United States., 365 U.S. at 512). Kyllo, 533 U.S. at 35–36. Id. at 29. Id. at 37. Electronic copy available at: https://ssrn.com/abstract=3005714 2018] FOURTH AMENDMENT IN THE DIGITAL AGE 89 area is held safe from prying government eyes.”98 The second aspect is the familiarity and availability of the technology used to obtain that information: In Dow Chemical, the government used a fixed-wing aircraft and a precise camera.99 These are undoubtedly significant technological advancements since the Founding, but they are quite familiar and common to twenty-first century Americans.100 In Kyllo, however, the government used a thermal imaging camera, which Justice Scalia repeatedly described as “technology . . . not in general public use.”101 To be sure, these two aspects are probably enough to explain the different result in the three airborne observation cases and Kyllo. But Justice Scalia’s opinion goes further, highlighting a concern that digital technologies may eventually eradicate any and all semblance of privacy—both inside the home and elsewhere.102 The beginning of Justice Scalia’s analysis provides: “This [conclusion] assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”103 A broader reading focuses the Court’s appreciation that technology potentially poses an existential threat to Fourth Amendment privacy.104 The government argued that the thermal imaging did not significantly compromise Kyllo’s privacy, but the Court said it didn’t matter: “While it is certainly possible to conclude from the videotape of the thermal imaging that occurred in this case that no ‘significant’ compromise of the homeowner’s privacy has 98 Id. The emphasis on the sanctity of the home—and the government’s interference with an individual’s property interests—was later confirmed through the revival of the trespass test in Jones and in the trespass test’s application in Jardines. 99 Dow Chemical v. United States, 476 U.S. at 229. 100 The most obvious issue with this narrower interpretation is that it seems unlikely that Justice Scalia’s analysis of Fourth Amendment protection would hinge on how common and familiar the information-gathering technology is. Put another way, we don’t think the result of Kyllo would be any different if, at some point in the near future, the general public use of thermal imaging cameras became common. 101 Kyllo, 533 U.S. at 34, 40 (“Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”). 102 Id. at 28. 103 Id. at 34. 104 Id. at 35–36 n.3. There can be little doubt Justice Scalia found potential future technological advances vexing, demonstrated by a footnote that notes the “ability to ‘see’ through walls and other opaque barriers is a clear, and scientifically feasible, goal of law enforcement research and development.” Electronic copy available at: https://ssrn.com/abstract=3005714 90 ALB. L.J. SCI. & TECH. [Vol. 28.2 occurred, we must take the long view, from the original meaning of the Fourth Amendment forward.”105 The Court’s conclusion suggests that technologically-enhanced searches are not just different as a matter of degree, but they are different as a matter of kind: Here, the government used digital technology to obtain information “that would previously have been unknowable without physical intrusion.”106 The Court is thus explicitly treating a digital, technologically-enhanced search differently from a physical search. The concern animating this distinction is circumvention—that the government should be prohibited from using technology in a manner that undermines Fourth Amendment restrictions on physical informationgathering techniques. Justice Scalia also hints that he would not limit this line of analysis to only prohibit obtaining information digitally that could not have otherwise been constitutionally collected.107 Responding to the dissent in footnote No. 2, Justice Scalia contends it is “quite irrelevant” that similar information about the relative heat inside Kyllo’s home could potentially have been gleaned through constitutionally permissible alternative means, such as “by observing snowmelt on the roof.”108 Justice Scalia argues: “The fact that equivalent information could sometimes be obtained by other means does not make lawful the use of means that violate the Fourth Amendment.”109 This suggestion takes on new importance in the case discussed next. B. United States v. Jones (2012) The Court decided a second case about digital informationgathering in 2012’s United States v. Jones, which concerned longterm GPS tracking of the suspect’s automobile.110 Below, we relate the facts, discuss a relevant precedent, examine the D.C. Circuit’s opinion, and then analyze the Court’s two concurring opinions. 1. Facts of Jones In 2004, the FBI began to suspect Antoine Jones of trafficking 105 106 107 108 109 110 Id. at 40. Id. See Kyllo, 533 U.S. at 40 (discussing a bright-line Fourth Amendment rule). Id. at 35 n.2. Id. Jones, 565 U.S. at 402. Electronic copy available at: https://ssrn.com/abstract=3005714 2018] FOURTH AMENDMENT IN THE DIGITAL AGE 91 in narcotics.111 Government agents placed Jones under investigation, using techniques that included visual surveillance of the nightclub he owned and operated, installation of a camera focused on the nightclub’s front door, and a pen register and wiretap on Jones’s cell phone.112 Based on information gleaned from these investigatory techniques, FBI agents applied to the U.S. District Court for the District of Columbia for a warrant authorizing the use of a Global Positioning System (GPS) tracking device on the automobile that Jones used.113 A warrant was issued, which required installation of the GPS tracker inside the District of Columbia and within 10 days.114 On the eleventh day and in Maryland, agents installed a GPS tracking device on the undercarriage of Jones’s car while it was parked in a public lot.115 In the litigation that followed, the government conceded that its agents had not complied with the terms of the warrant and argued that a warrant was not required.116 Over the 28 days that followed installation of the GPS tracker, the government tracked the vehicle’s every movement.117 “By means of signals from multiple satellites, the device established the vehicle’s location within 50 to 100 feet, and communicated that location by cellular phone to a Government computer. It relayed more than 2,000 pages of data over the 4-week period.”118 At his trial, the government introduced GPS-derived location data that connected Jones to a stash house that contained $850,000 in cash, 97 kilograms of cocaine, and 1 kilogram of cocaine base.119 The District Court denied most of Jones’s suppression motion for the 111 Id. See generally Peter P. Swire & Erin E. Murphy, How to Address Standardless Discretion After Jones, OHIO STATE PUBLIC LAW WORKING PAPER NO. 177 (2012); Susan Freiwald, The Davis Good Faith Rule and Getting Answers to the Questions Jones Left Open, 14 N.C. J.L. & TECH. 341 (2013); Mary Leary, The Missed Opportunity of United States v. Jones: Commercial Erosion of Fourth Amendment Protection in a Post-Google Earth World, 15 U. PA. J. CONST. L. 331 (2012); Marc McAllister, The Fourth Amendment and New Technologies: The Misapplication of Analogical Reasoning, 36 S. ILL. U. L.J. 475 (2012) (for further discussion). 112 Jones, 565 U.S. at 402. 113 Id. at 402–03. 114 Id. 115 Id. at 403. This was not the sole instance of government agents physically touching Jones’s car: Agents “once had to replace the [GPS] device’s battery when the vehicle was parked in a different public lot in Maryland.” Id. 116 Id. at 403 n.1. 117 Id. at 403. 118 Jones, 565 U.S. at 403. 119 Id. at 403–04. Electronic copy available at: https://ssrn.com/abstract=3005714 92 ALB. L.J. SCI. & TECH. [Vol. 28.2 GPS-derived location data.120 Jones was convicted, sentenced to life in prison, and appealed.121 2. The Applicability of the Court’s Decision in Knotts The District Court relied on the Court’s holding in United States v. Knotts122 in its denial of Jones’s suppression motion.123 The differences between Knotts and Jones are particularly illuminating for our purposes of distinguishing between analog and digital technologies. In Knotts, the police were investigating the defendant for manufacturing methamphetamine.124 Upon learning that one of Knotts’s coconspirator would purchase a five-gallon drum of chemicals, the police obtained the consent of the chemical vendor to place a radio beeper inside the drum.125 As the Court explained, “[a] beeper is a radio transmitter, usually battery operated, which emits periodic signals that can be picked up by a radio receiver.”126 The police followed the coconspirator’s car containing the drum from where it was purchased in Minneapolis, Minnesota, to a secluded cabin near Shell Lake, Wisconsin, a journey of about 100 miles.127 For most of the drive, agents maintained visual contact with the coconspirator’s vehicle, but exclusive use of the beeper became necessary near the end of the drive.128 The Court held that no search occurred: A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When [the coconspirator] traveled over the public streets, he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from 120 Id. at 403. “The District Court granted the motion only in part, suppressing the data obtained while the vehicle was parked in the garage adjoining Jones’s residence. It held the remaining data admissible.” 121 Id. at 404. 122 460 U.S. 276 (1983). 123 United States v. Jones, 451 F. Supp. 2d 71, 88 (D.D.C. 2006), aff’d in part, rev’d in part sub nom. Maynard, 615 F.3d 544, aff’d Jones, 565 U.S. 400. 124 United States v. Knotts, 460 U.S. at 277. 125 Id. at 278. 126 Id. at 277. 127 Id. 128 Id. at 278–79. Electronic copy available at: https://ssrn.com/abstract=3005714 2018] FOURTH AMENDMENT IN THE DIGITAL AGE 93 public roads onto private property.129 The District Court reasoned that the same analysis applied to monitoring using a GPS device.130 3. The D.C. Circuit and the Supreme Court Majority’s Opinions A panel of the U.S. Court of Appeals for the District of Columbia Circuit unanimously reversed on the GPS Fourth Amendment issue.131 Judge Douglas H. Ginsburg concluded that Knotts was inapplicable because the Court “explicitly distinguished between the limited information discovered by use of the beeper— movements during a discrete journey—and more comprehensive or sustained monitoring of the sort at issue in this case.”132 Specifically, Judge Ginsburg cited the following passage from Knotts to argue that the Court had specifically reserved the question of how the Fourth Amendment applies to the more comprehensive type of surveillance implicated by the GPS tracker: “[I]f such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.”133 After finding the Court’s holding in Knotts inapplicable, Judge Ginsburg’s Fourth Amendment inquiry asked two questions: First, did Jones actually expose to the public his every movement in the car over the 28-day tracking period? Second, did Jones constructively expose to the public his every movement in the car over the 28-day tracking period?134 In addressing whether Jones’s movements were actually exposed, Judge Ginsburg first discussed many of the same precedents reviewed above in section I.C—namely, Ciraolo, Florida v. Riley, and Bond.135 In discussing these particular cases, Judge Ginsburg asked whether the totality of Jones’s movements might actually be observed by a member of the public.136 Judge Id. at 281–82. United States v. Jones (D.D.C.), 451 F. Supp. 2d at 88. 131 Maynard, 615 F.3d at 568. 132 Id. at 556 (citing Knotts, 465 U.S. at 283). 133 Knotts, 465 U.S. at 84. 134 Maynard, 615 F.3d at 558–59. 135 Id. at 559. 136 See id. (“In considering whether something is ‘exposed’ to the public as that term was used in Katz we ask not what another person can physically and may lawfully do but rather what a reasonable person expects another might actually do.”). 129 130 Electronic copy available at: https://ssrn.com/abstract=3005714 94 ALB. L.J. SCI. & TECH. [Vol. 28.2 Ginsburg answered: [W]e hold the whole of a person’s movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil. It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person’s hitherto private routine.137 Judge Ginsburg similarly concluded that Jones’s movements were not constructively exposed: The whole of one’s movements over the course of a month is not constructively exposed to the public because . . . that whole reveals far more than the individual movements it comprises. The difference is not one of degree but of kind, for no single journey reveals the habits and patterns that mark the distinction between a day in the life and a way of life, nor the departure from a routine that, like the dog that did not bark in the Sherlock Holmes story, may reveal even more.138 Further, Judge Ginsburg explained why the whole was more than merely the sum of its parts: Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than does any individual trip viewed in isolation. Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one’s not visiting any of these places over the course of a month. The sequence of a person’s movements can reveal still more; a single trip to a gynecologist’s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story. A person who knows all of another’s travels can deduce 137 138 Id. at 560. Id. at 562. Electronic copy available at: https://ssrn.com/abstract=3005714 2018] FOURTH AMENDMENT IN THE DIGITAL AGE 95 whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups—and not just one such fact about a person, but all such facts.139 Considered as a collective whole, Judge Ginsburg held the 28 days of GPS monitoring was a Fourth Amendment search because it revealed “an intimate picture of the subject’s life that he expects no one to have—short perhaps of his spouse.”140 The D.C. Circuit denied the government’s petition for rehearing over the dissent of four judges.141 Judge Brett Kavanaugh’s dissent from the denial for rehearing en banc argued the government’s interference with Jones’s property interests—when agents warrantlessly installed the GPS tracker and changed its batteries—constituted a Fourth Amendment search.142 A majority of the U.S. Supreme Court later adopted Judge Kavanaugh’s suggestion.143 As discussed above in section I.A, a five-justice majority held that the government conducted an unreasonable, warrantless search when its agents physically placed the GPS tracker on the underside of Jones’s vehicle.144 Justice Alito wrote an opinion concurring in the judgment, which was joined by Justice Ginsburg, Justice Breyer, and Justice Kagan.145 Justice Sotomayor joined Justice Scalia’s majority opinion, but she also filed a separate concurring opinion.146 We discuss the two concurring opinions in detail below because a close reading suggests there are five votes to significantly alter how the Court analyzes digitally-aggregated information that was physically exposed to third parties. 4. Justice Alito’s Opinion Most of Justice Alito’s opinion criticizes the majority’s revival of the trespass test.147 At the end of his opinion, however, Justice Id. Maynard, 615 F.3d at 563. 141 United States v. Jones, 625 F.3d 766, 767 (D.C. Cir. 2010), denying reh’g en banc to Maynard, 615 F.3d 544, aff’d sub nom. Jones, 565 U.S. 400. 142 United States v. Jones, 625 F.3d at 769–71 (Kavanaugh, J., dissenting). 143 See Jones, 565 U.S. at 413 (for holding). 144 Id. 145 Id. at 418 (Alito, J., concurring). 146 Id. at 413 (Sotomayor, J., concurring). 147 See id. at 424–25 (Alito, J., concurring). [T]he Court’s reasoning largely disregards what is really important 139 140 Electronic copy available at: https://ssrn.com/abstract=3005714 96 ALB. L.J. SCI. & TECH. [Vol. 28.2 Alito argues that the 28 days of monitoring constituted a violation of Katz’s reasonable-expectation-of-privacy test.148 Justice Alito’s analysis is significantly shorter than Judge Ginsburg’s, but both jurists seem to agree that the proper subject for the Katz inquiry was the entire 28-day monitoring period, rather than analyzing each individual trip in a vacuum.149 But importantly, Justice Alito and Judge Ginsburg differ on precisely what expectation of privacy the government violated here. Judge Ginsburg’s probabilistic analysis asked whether the totality of Jones’s movements over 28 days might actually be observed by a member of the public; he answered that question no because “the likelihood a stranger would observe all those movements is not just remote, it is essentially nil.”150 Justice Alito’s focus is instead what society expects the police to do: “[S]ociety’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not secretly monitor and catalogue every single movement of an individual’s car for a very long period.”151 Professor Kerr’s discussion of Justice Alito’s opinion explains that Justice Alito “shift[ed] the probabilistic inquiry from what a person might expect the public to see to what a person might expect that police to do.”152 And Justice Alito argues—excepting “extraordinary offenses” and “investigation[s] of unusual importance”— comparable physical tracking and visual surveillance is “difficult and costly and therefore rarely undertaken” because “constant monitoring of the location of a vehicle for four weeks . . . would have required a large team of agents, multiple vehicles, and (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car’s operation). Attaching such an object is generally regarded as so trivial that it does not provide a basis for recovery under modern tort law. 148 Id. at 430–31 (Alito, J., concurring). 149 Jones, 565 U.S. at 430 (Alito, J., concurring) (“[R]elatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.”). See also Kerr, Mosaic Theory, supra note 30, at 327. (“Like the D.C. Circuit, Justice Alito concluded that long-term GPS monitoring constituted a search while short-term monitoring did not.”). 150 Maynard, 615 F.3d at 558. 151 Jones, 565 U.S. at 430 (Alito, J., concurring). 152 Kerr, Mosaic Theory, supra note 30, at 327. Electronic copy available at: https://ssrn.com/abstract=3005714 2018] FOURTH AMENDMENT IN THE DIGITAL AGE 97 perhaps aerial assistance.”153 Justice Alito thus implicitly echoes an important aspect of Kyllo—that digitally-enhanced searches are distinct from physical searches. In Kyllo, Justice Scalia was perturbed that the government used digital technology to obtain information “that would previously have been unknowable without physical intrusion.”154 But there is an important point of divergence between Kyllo and Justice Alito in Jones on this issue: The crux of the physical/digital distinction in Kyllo was that the police used a digital technology to obtain information that they could not have otherwise physically collected, because the information was about the inside of the suspect’s home.155 In Jones, however, Justice Alito seems to extend the point: It was theoretically possible the police could use physical means that did not run afoul of the Fourth Amendment to collect all of the same information about the suspect’s movements.156 It would be costly and difficult, but possible and constitutional. And yet Justice Alito seems prepared to treat the digitally-enhanced, effortless collection of Jones’s movements differently as a matter of kind, rather than degree. Justice Alito’s opinion concludes by noting that it was unnecessary to “identify with precision the point at which the tracking of this vehicle became a search,” because “the line was surely crossed before the 4-week mark.”157 In short, Justice Alito’s opinion endorses drawing a line between traditional surveillance and digitally-aggregated information, but it does not determine where, exactly, that line lies. 5. Justice Sotomayor’s Opinion Justice Sotomayor joined Justice Scalia’s majority opinion, but she also wrote a separate concurrence.158 At bottom, Justice Sotomayor agreed with both Justice Scalia and Justice Alito: This was a search twice over—both a trespass and a violation of a reasonable expectation of privacy.159 153 154 155 156 157 158 159 Jones, 565 U.S. at 429, 431 (Alito, J., concurring). Kyllo, 533 U.S. at 50. Id. at 34. Jones, 565 U.S. at 422 (Alito, J., concurring). Id. at 430 (Alito, J., concurring). Id. at 413 (Sotomayor, J., concurring). See id. at 414–15 (Sotomayor, J., concurring). I join the Court’s opinion because I agree that a search within the meaning of the Fourth Amendment occurs, at a minimum, where, as here, the Government obtains information by physically intruding on Electronic copy available at: https://ssrn.com/abstract=3005714 98 ALB. L.J. SCI. & TECH. [Vol. 28.2 Justice Sotomayor’s opinion is particularly notable in two respects. First, Justice Sotomayor explicitly says the time has come to revisit and alter how the third-party doctrine applies in the digital age: More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed 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. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the email addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. . . . I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year.160 Justice Sotomayor calls for the Court to “cease[] . . . treat[ing] secrecy as a prerequisite for privacy.”161 And she goes on to endorse a distinct approach to the third-party doctrine first raised by Justice Marshall’s dissent in Smith v. Maryland162—that the scope of disclosure of information to third parties should be limited to the specific purpose for which it was disclosed: I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. See Smith, 442 U.S., at 749 (Marshall, J., dissenting) (“Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to a constitutionally protected area. . . . I agree with Justice Alito that, at the very least, longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. (Internal quotation marks and alterations omitted). 160 Id. at 417–18 (Sotomayor, J., concurring) (citing Smith v. Maryland, 442 U.S. 735, 742 (1979) (superseded by statute); United States v. Miller, 425 U.S. 435, 443 (1976) (superseded by statute)). See infra section III for an in-depth discussion of the third-party doctrine. 161 Id. at 418 (Sotomayor, J., concurring). 162 442 U.S. 735 (1979) (superseded by statute). Electronic copy available at: https://ssrn.com/abstract=3005714 2018] FOURTH AMENDMENT IN THE DIGITAL AGE 99 other persons for other purposes”); see also Katz, 389 U.S., at 351–352 (“[W]hat [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected”).163 The second notable aspect of Justice Sotomayor’s opinion is how she frames the Katz inquiry. Citing the unique aspects of GPS monitoring—its effortless and comprehensive precision—Justice Sotomayor argued: I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask 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.164 This focus is slightly distinct from both Judge Ginsburg’s approach and Justice Alito’s approach. Judge Ginsburg asked what a person expects other people might actually see;165 Justice Alito asked what a person expects the police to do;166 and Justice Sotomayor’s approach asked “whether police conduct collected so much information that it enabled the government to learn about a person’s private affairs more or less at will.”167 But most important for our purposes is that Justice Sotomayor—more directly than Justice Scalia in Kyllo and Justice Alito here—seems prepared to adopt a distinction between physical and digitally-enhanced information gathering. She wrote: “I do not regard as dispositive the fact that the Government might obtain the fruits of GPS monitoring through lawful conventional surveillance techniques.”168 In support of this assertion, Justice Sotomayor cites footnote two of Justice Scalia’s Kyllo opinion— that it was “quite irrelevant” that constitutionally permissible observation could potentially have revealed the same information as was obtained with a digitally-enhanced technique.169 The takeaway is that members of the Court are increasingly Jones, 565 U.S. at 418 (Sotomayor, J., concurring). Id. at 416 (Sotomayor, J., concurring). 165 Kerr, Mosaic Theory, supra note 30, at 324. 166 Id. at 328. 167 Id. (internal quotation marks omitted). 168 Jones, 565 U.S. at 416 (Sotomayor, J., concurring) (citing Kyllo, 533 U.S. at 35 n.2). 169 Id. 163 164 Electronic copy available at: https://ssrn.com/abstract=3005714 100 ALB. L.J. SCI. & TECH. [Vol. 28.2 adopting the position that digitally-enhanced techniques are distinct from traditional, physical information-gathering techniques. Justice Scalia’s concern in Kyllo on this point was primarily about preventing circumvention—that the police should not be able to obtain information through digital means that they could not have permissibly physically collected.170 Justice Alito here seems prepared to draw a line between constitutionally permissible physical surveillance methods and digitally-enhanced ones, a distinction premised on society’s expectations of the logistical difficulties of old-fashioned surveillance.171 And Justice Sotomayor goes further, seizing on the suggestion from Kyllo that the simple fact the police may permissibly collect information through physical means does not, categorically, render the digital collection of that same information constitutional.172 The Court’s adoption of a bright-line distinction between the physical and the digital becomes most explicit in the cases discussed next. C. Riley v. California and United States v. Wurie173 (2014) The Court confronted a common question in Riley and Wurie: “[W]hether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.”174 Below, we first provide the facts of each case, relate Kyllo, 533 U.S. at 34. See id. (discussing further the digital and physical search dichotomy). 172 See Jones, 565 U.S. at 411 (making the point that a Katz analysis would still apply). 173 728 F.3d 1 (1st Cir. 2013), aff’d sub nom. Riley, 134 S. Ct. 2473. 174 Riley, 134 S. Ct. at 2480; cf. Clark D. Cunningham, Apple and the American Revolution: Remembering Why We Have the Fourth Amendment, 126 YALE L.J. 216 (2016) (deriving underlying principles from the history of the Fourth Amendment and examining modern-day practices given these principles); Adam M. Gershowitz, Password Protected? Can a Password Save Your Cell Phone from the Search Incident to Arrest?, 96 IOWA L. REV. 1125 (2011) (considering the legal protection offered by a password lock on an arrestee’s cell phone); Adam M. Gershowitz, Seizing a Cell Phone Incident to Arrest: Data Extraction Devices, Faraday Bags, or Aluminum Foil as a Solution to the Warrantless Cell Phone Search Problem, 22 WM. & MARY BILL RTS. J. 601 (2013) (suggesting that cell phones only be seized incident to arrest and preserved pending a search warrant); JENNIFER KING & CHRIS J. HOOFNAGLE, RESEARCH REPORT: A SUPERMAJORITY OF CALIFORNIANS SUPPORTS LIMITS ON LAW ENFORCEMENT ACCESS TO CELL PHONE LOCATION INFORMATION (2008) (reporting the preferences of Californians regarding the use of retrospective location data from cell phones by law enforcement); Matthew E. Orso, Cellular Phones, Warrantless Searches, and the New Frontier of Fourth Amendment Jurisprudence, 50 SANTA CLARA L. REV. 183, 185 (2010) (proposing a different standard for searching cell phones incident to 170 171 Electronic copy available at: https://ssrn.com/abstract=3005714 2018] FOURTH AMENDMENT IN THE DIGITAL AGE 101 the search-incident-to-arrest (SITA) rule from three precedents, and then discuss Chief Justice Roberts’s majority opinion. 1. Facts of Riley and Wurie In the first case, the police stopped David Riley for a traffic violation, which eventually led to his arrest for possession of concealed and loaded firearms.175 A search of Riley incident to his arrest revealed a smartphone in a pants pocket, and an officer who accessed information on the phone noticed repeated use of a term associated with the “Bloods” street gang.176 The Court described Riley’s smartphone as “a cell phone with a broad range of other functions based on advanced computing capability, large storage capacity, and Internet connectivity.”177 Later, a detective specializing in street gangs further examined the contents of Riley’s smartphone.178 The detective’s investigation revealed “photographs of Riley standing in front of a car they arrest and distinguishing between smartphones and older devices); JENNIFER M. URBAN ET AL., MOBILE PHONES AND PRIVACY (2012) (reporting the results of a survey concerning the type of data stored on cell phones and attitudes on privacy of this data); Thomas K. Clancy, Fourth Amendment Satisfaction — The “Reasonableness” of Digital Searches, 48 TEX. TECH L. REV. 37 (2015) (discussing the impact of Riley on Fourth Amendment jurisprudence and suggesting that traditional rules of search and seizure need rethinking). 175 Riley, 134 S. Ct. at 2480. Cf. Alan Butler, Get a Warrant: The Supreme Court’s New Course for Digital Privacy Rights after Riley v. California, 10 DUKE J. CONST. L. & PUB. POL’Y 83 (2014) (discussing the impact of Riley on Fourth Amendment jurisprudence and considering its effects on related constitutional questions); Adam M. Gershowitz, The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches, 69(3) VAND. L. REV. 585 (2016) (discussing the impact of Riley on lower court decisions and criticizing the widespread practice of issuing overbroad search warrants); Matthew B. Kugler & Lior J. Strahilevitz, The Myth of Fourth Amendment Circularity, 84 U. CHI. L. REV. 1747 (2017) (reporting that changes in Fourth Amendment jurisprudence has little impact on the public’s expectations of privacy); Adam Lamparello & Charles E. MacLean, Riley v. California: Privacy Still Matters, but How Much and in What Contexts?, 27 REGENT U.L. REV. 25 (2014) (hypothesizing how the Court’s rationale in Riley will affect the Court’s analysis in later cases concerning digital privacy); Richard H. McAdams, Riley’s Less Obvious Tradeoff: Forgoing Scope-Limited Searches, 48 TEX. TECH L. REV. 97 (2015) (examining the possibility of a warrant exception that would allow “scope-limited” search of cell phones incident to arrest); Leslie A. Shoebotham, The Strife of Riley: The SearchIncident Consequences of Making an Easy Case Simple, 75 LA. L. REV. 29 (2014) (criticizing Riley’s failure to address or reinforce the evidence-gathering justification of the search-incident doctrine). 176 Riley, 134 S. Ct. at 2480. 177 Id. 178 Id. Electronic copy available at: https://ssrn.com/abstract=3005714 102 ALB. L.J. SCI. & TECH. [Vol. 28.2 suspected had been involved in a shooting a few weeks earlier.”179 Riley was eventually convicted on three charges connected to that earlier shooting.180 Before his trial, Riley argued “that the searches of his phone violated the Fourth Amendment, because they had been performed without a warrant and were not otherwise justified by exigent circumstances.”181 The trial court rejected that argument, the California Court of Appeal affirmed, and the California Supreme Court denied Riley’s petition for review.182 In the second case, the police arrested Brima Wurie after observing him engage in an apparent drug sale.183 The police confiscated two cell phones from Wurie’s body in a search incident to arrest; unlike the smartphone at issue in the companion case, the mobile phone implicated here was a “flip phone,” which the Court described “as a kind of phone that is flipped open for use and that generally has a smaller range of features than a smart phone.”184 Shortly after arriving at the police station, “officers noticed that the phone was repeatedly receiving calls from a source identified as ‘my house’ on the phone’s external screen.”185 The officers navigated through several menus to ascertain the phone number associated with the “my house” contact and used an online phone directory to trace the number to an apartment building.186 A search of that address, executed pursuant to a warrant, revealed narcotics, firearms, and cash.187 Wurie was indicted on several charges and “moved to suppress the evidence obtained from the search on his apartment, arguing it was the fruit of an unconstitutional search of his cell phone.”188 The district court denied his motion and Wurie was convicted.189 A divided panel of the First Circuit reversed.190 The Court unanimously ruled in favor of both defendants in an opinion by Chief Justice Roberts.191 179 180 181 182 183 184 185 186 187 188 189 190 191 Id. at 2481. Id. Id. Riley, 134 S. Ct. at 2481. Id. Id. Id. Id. Id. Riley, 134 S. Ct. at 2482. Id. Id. Id. at 2479. Electronic copy available at: https://ssrn.com/abstract=3005714 2018] FOURTH AMENDMENT IN THE DIGITAL AGE 103 2. Search Incident to Arrest Precedents As Chief Justice Roberts relates in his opinion, the search incident to arrest (SITA) rule is an exception to the warrant requirement. The government has the right, “always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime.”192 Litigation about the SITA rule has since focused on the scope of the rule, “the extent to which officers may search property found on or near the arrestee.”193 There are three relevant Supreme Court precedents about the scope of the SITA rule. The first is Chimel v. California.194 The defendant was arrested inside his three-bedroom home, and the police proceeded to search the entire house, including the attic, the garage, and through the contents of drawers.195 The Court articulated two rationales for the SITA rule and held that neither rationale justified the scope of the officers’ search of the defendant’s entire house.196 The first rationale is the arresting officers’ safety: “[I]t is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape.”197 The second rationale is preventing the destruction of evidence: “[I]t is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.”198 Together, these two rationales provided the scope of the SITA rule: “There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’— construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.”199 192 Weeks v. United States, 232 U.S. 383, 392 (1914). Cf. Wayne A. Logan, An Exception Swallows a Rule: Police Authority to Search Incident to Arrest, 19 YALE L. & POL’Y REV. 381 (2001) (attempting to distinguish custodial arrests from other police encounters as a limit to the applicability of the search incident to arrest exception); Ric Simmons, The Missed Opportunities of Riley v. California, 12 OHIO ST. J. CRIM. L. 253 (2014) (discussing flaws and missed opportunities in Riley’s majority opinion). 193 Riley, 134 S. Ct. at 2482–83. 194 395 U.S. 752 (1969). 195 Id. at 753–54. 196 Id. at 762–63, 768. 197 Id. at 763. 198 Id. 199 Id. Electronic copy available at: https://ssrn.com/abstract=3005714 104 ALB. L.J. SCI. & TECH. [Vol. 28.2 The second case is United States v. Robinson.200 The defendant, Robinson, was arrested for driving with a revoked license.201 The arresting officer conducted a patdown and felt an object in Robinson’s pocket that he could not initially identify.202 The officer removed the object, which was a crumpled up cigarette package, and when the officer opened it, he found narcotics inside.203 The court below held that the search violated the Fourth Amendment because “Robinson was unlikely to have evidence of the crime of arrest on his person, and because it believed that extracting the cigarette package and opening it could not be justified as part of a protective search for weapons.”204 The Supreme Court reversed, explaining that: [t]he authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.205 The Court did not distinguish between a search of Robinson’s person and the officer’s further inspection of the contents of an object found during the search of his person. Only later, in United States v. Chadwick,206 did the Court qualify this aspect of the SITA rule: It was unreasonable and unconstitutional for the police to search a 200-pound footlocker incident to arrest because it was not “personal property . . . immediately associated with the person of the arrestee.”207 The third and final case is Arizona v. Gant.208 Gant concerned the scope of the SITA rule within the context of a vehicle.209 The police had searched the passenger compartment of the vehicle after having handcuffed and secured the defendants in patrol 414 U.S. 218 (1973). Id. at 220. 202 Id. at 223. 203 Id. 204 Riley, 134 S. Ct. at 2483. 205 Robinson, 414 U.S. at 235. 206 433 U.S. 1 (1977). 207 Id. at 4, 15, abrogated on other grounds by California v. Acevedo, 500 U.S. 565 (1991). 208 556 U.S. 332 (2009). 209 See generally id. (finding that searching an arrestee’s vehicle after he has been secured and the vehicle is outside his reach violates the Fourth Amendment SITA exception). 200 201 Electronic copy available at: https://ssrn.com/abstract=3005714 2018] FOURTH AMENDMENT IN THE DIGITAL AGE 105 cars.210 The Court held that Chimel authorized a search of a vehicle “only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.”211 But the Court added an additional justification for the more thorough search here: A warrantless search of the vehicle’s passenger compartment is permissible “when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’”212 This exception flows not from Chimel but rather from “circumstances unique to the vehicle context.”213 3. The Court’s Opinion Chief Justice Roberts’s analysis begins with the general Fourth Amendment proposition that the Court “generally determine[s] whether to exempt a given type of search from the warrant requirement ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’”214 The Chief Justice notes that “a mechanical application of Robinson might well support the warrantless searches at issue here,” but argues that digital searches are distinct from physical ones: “[W]hile Robinson’s categorical rule strikes the appropriate balance in the context of physical objects, neither of its rationales has much force with respect to digital content on cell phones.”215 On the government interest side of the equation, the Court asked “whether application of the search incident to arrest doctrine to this particular category of effects would ‘untether the rule from the justifications underlying the Chimel exception.’”216 The Court answered that question no.217 First, the Court reasoned that with respect to an officer’s safety, “[d]igital data stored on a Id. at 336, 344. Id. at 343. 212 Id. (quoting Thornton v. United States, 541 U.S. 615, 632 (2004) (Scalia, J., concurring)). 213 Id. 214 Riley, 134 S. Ct. at 2484 (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). 215 Id. 216 Id. at 2485 (quoting Gant, 556 U.S. at 343). 217 See id. at 2483–94 (explaining that Chimel’s SITA exception is to be used to protect the safety of the police officer or preserve evidence at risk of being destroyed when still within a defendant’s reach, and that in the present case, the cell phone data posed no threat to the police officer and was no longer within reach of Defendant). 210 211 Electronic copy available at: https://ssrn.com/abstract=3005714 106 ALB. L.J. SCI. & TECH. [Vol. 28.2 cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape.”218 As for the second justification for SITA—preventing the destruction of evidence— the government argued that digital data on a cell phone may be “vulnerable to two types of evidence destruction unique to digital data—remote wiping and data encryption.”219 The Court rejected this argument.220 It reasoned that “in situations in which an arrest might trigger a remote-wipe attempt or an officer discovers an unlocked [and unencrypted] phone, it is not clear that the ability to conduct a warrantless search would make much of a difference.”221 The Court then turned to the privacy interests at stake. The opinion notes that, while Robinson is the only Supreme Court decision approving of a search of the contents of an item found on an arrestee’s person, the Court was aware of many other cases from Circuit Courts of Appeal, which include searches incident to arrest of billfolds, address books, wallets, and purses.222 The government had argued that “a search of all data stored on a cell phone is materially indistinguishable from searches of these sorts of physical items.”223 The Court flatly rejected that assertion: “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together.”224 The Court then dedicated considerable space to explaining why digital searches are categorically different from physical ones— and make no mistake, the Court expressly held that digital searches “differ in both a quantitative and a qualitative sense” from searches of physical objects.225 On the quantitative differences, Chief Justice Roberts noted that “[o]ne of the most notable distinguishing features of modern Id. at 2485. Id. at 2486. 220 Riley, 134 S. Ct. at 2486 (stating that the issues of remote wiping and data encryption are neither prevalent nor would they allow for sufficient searches to be made). 221 Id. at 2487. 222 See id. at 2488 (citing United States v. Carrion, 809 F. 2d 1120, 1123, 1128 (5th Cir. 1987); United States v. Watson, 669 F.2d 1374, 1383–84 (11th Cir. 1982); United States v. Lee, 501 F. 2d 890, 892 (D.C. Cir. 1974)). 223 Id. (internal quotation marks omitted). 224 Id. “The term ‘cell phone’ is itself misleading shorthand; many of these devic es are in fact minicomputers that also happen to have the capacity to be used as a telephone.” Id. at 2489. 225 Id.at 2489. 218 219 Electronic copy available at: https://ssrn.com/abstract=3005714 2018] FOURTH AMENDMENT IN THE DIGITAL AGE 107 cell phones is their immense storage capacity,” 226 and that modern smart phones have a dizzying array of features, including camera, video player, rolodex, calendar, tape recorder, library, diary, albums, television, maps, and newspapers.227 This quantitative difference in the amount of storage makes a cell phone much more similar to the 200-pound footlocker disallowed in Chadwick than the cigarette package permitted in Robinson.228 Chief Justice Roberts argued that the storage capacity of modern cell phones has four interrelated consequences for privacy, and his list is remarkable because each item suggests a bright-line distinction between what was previously physically feasible and what is now digitally possible.229 First, a cell phone’s collection of many different types of information “reveal much more in combination than any isolated record.”230 Second, the sheer amount of storage makes a cell phone’s collection of any one type of information far more revealing than would have been physically possible: “The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet.”231 Third, the amount of data contained on a cell phone has an unprecedented temporal scope. For example, “[a] person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone.”232 Fourth and finally, Chief Justice Roberts remarked on the proliferation and pervasiveness of these devices: “[M]any of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives— from the mundane to the intimate,” and “[a]llowing the police to scrutinize such records on a routine basis is quite different from allowing them to search a personal item or two in the occasional case.”233 On the qualitative differences, Chief Justice Roberts discussed how two types of extremely revealing data logged by modern cell 226 227 228 229 230 231 232 233 Riley, 134 S. Ct. at 2489. Id. Id. at 2484–85. Id.at 2489–90. Id. at 2489. Id. Riley, 134 S. Ct. at 2489. Id. at 2490. Electronic copy available at: https://ssrn.com/abstract=3005714 108 ALB. L.J. SCI. & TECH. [Vol. 28.2 phones have changed the Fourth Amendment privacy equation: Internet browsing history and location data. Browsing history, he says, “could reveal an individual’s private interests or concerns— perhaps a search for certain symptoms of a disease, coupled with frequent visits to WebMD.”234 And “[h]istoric location information is a standard feature on many smart phones and can reconstruct specific movements down to the minute, not only around town but also within a particular building.”235 Chief Justice Roberts, concluding the section of the opinion about qualitative differences, makes explicit that digital technology has fundamentally altered the Fourth Amendment calculus. Quoting Learned Hand in 1926—”that it is ‘a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him’”236—Chief Justice Roberts concludes: If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.237 There are two additional noteworthy issues that Chief Justice Roberts’s decision discusses. The first concerns cloud computing, which he explains “is the capacity of Internet-connected devices to display data stored on remote servers rather than on the device itself.”238 An aspect that becomes important for our analysis below Id. Id. 236 Id.at 2490–91 (quoting United States v. Kirschenblatt, 16 F.2d 202, 203 (2nd Cir. 1926)). 237 Id. at 2491. 238 Id. See, e.g., Primavera De Filippi & Smari McCarthy, Cloud Computing: Centralization and Data Sovereignty, 3(2) EUR. J. L. & TECH. 1 (2012) (defining and describing cloud computing); URS GASSER, CLOUD INNOVATION AND THE LAW: ISSUES, APPROACHES, AND INTERPLAY (Research Publication No. 2014-7 2014) (discussing the benefits of cloud computing); Paul Ohm, The Fourth Amendment in a World Without Privacy, 81 MISS. L.J. 1309 (2012) (describing a third-party rule); RANDAL C. PICKER, COMPETITION AND PRIVACY IN WEB 2.0 AND THE CLOUD (John M. Olin Law & Economics Working Paper No. 414 (2d series) 2008) (discussing cloud computing and computers in general); Paul M. Schwartz, Information Privacy in the Cloud, 161 U. PA. L. REV. 1623 (2013); Laurie B. Serafino, ‘I Know My Rights, So You Go’n Need a Warrant for That:’ The Fourth Amendment, Riley’s Impact, and Warrantless Searches of Third-Party Clouds, 19 234 235 Electronic copy available at: https://ssrn.com/abstract=3005714 2018] FOURTH AMENDMENT IN THE DIGITAL AGE 109 is that the government conceded, and the Court implicitly agreed, that the SITA exception to the warrant requirement “may not be stretched to cover . . . a search of files stored in the cloud,” because that would be akin to “finding a key in a suspect’s pocket and arguing that it allowed law enforcement to unlock and search a house.”239 Professor Kerr explains that the Court’s “special concern that allowing a cell phone search could accidentally allow a cloud search, too” can “only make[] sense as a concern if there is Fourth Amendment protection in stored contents in the cloud, too.”240 The final noteworthy aspect of the Court’s opinion comes in discussion of the government’s proposed limiting principle—that “officers could search cell phone data if they could have obtained the same information from a pre-digital counterpart.”241 In rejecting this suggestion, the Court reiterated just how different digital data is: [T]he fact that a search in the pre-digital era could have turned up a photograph or two in a wallet does not justify a search of thousands of photos in a digital gallery. The fact that someone could have tucked a paper bank statement in a pocket does not justify a search of every bank statement from the last five years.242 The Court’s opinion is very explicit that digital searches implicate quantitatively and qualitatively distinct privacy interests. And, critically, the Court held that the government’s justifications for physical searches must have their own merit BERKELEY J. CRIM. L. 154 (2014) (considering if third-party Internet service providers should not be denied Fourth Amendment protections); Christopher Soghoian, Caught in the Cloud: Privacy, Encryption, and Government Back Doors in the Web 2.0 Era, 8 J. TELECOMM. & HIGH TECH. L. 359 (2010) (discussing cloud computing); Peter Swire, From Real-Time Intercepts to Stored Records: Why Encryption Drives the Government to Seek Access to the Cloud, 2 INT’L DATA PRIV. L. 200 (discussing law enforcement’s ability to access the cloud); CHRISTOPHER S. YOO, CLOUD COMPUTING: ARCHITECTURAL AND POLICY IMPLICATIONS (U. of Penn., Inst. for Law & Econ. Research Paper No. 11-15 2011) (describing “[c]loud computing’s growing salience”); Jennifer C. Daskal, The Un-Territoriality of Data, 125 YALE L.J. 326 (2015) (discussing generally how cloud computing works); John G. Palfrey, The Public and the Private at the United States Border with Cyberspace, 78(2) MISS. L. J. 241, 243 (2008) (discussing innovation in the U.S.). 239 Riley, 134 S. Ct. at 2491. 240 Orin S. Kerr, The Significance of Riley, THE WASHINGTON POST (June 25, 2014), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/06/25/t he-significance-of-riley/. 241 Riley, 134 S. Ct. at 2493. 242 Id. Electronic copy available at: https://ssrn.com/abstract=3005714 110 ALB. L.J. SCI. & TECH. [Vol. 28.2 before the same rules will be applied to digital searches.243 We do not seek to belabor the point. There is a significant amount of language in the Court’s decision that suggests SITA is just “the tip of the iceberg” because “[w]e’re now in a ‘digital age,’ and quantity of data and the ‘qualitatively different’ nature of at least some digital records changes how the Fourth Amendment should apply.”244 In sum, the Court’s evolution on digital searches began in Kyllo, progressed in Jones, and, as Riley suggests, appears to be accelerating further. III. THE THIRD-PARTY DOCTRINE The “third-party doctrine” is the name courts and scholars have given to the general rule that “if information is possessed or known by third parties, then, for purposes of the Fourth Amendment, an individual lacks a reasonable expectation of privacy in the information.”245 “By disclosing to a third party, the subject gives up all of his Fourth Amendment rights in the information revealed.”246 Hence, under the third party doctrine, the Id. The Significance of Riley, supra note 240. 245 Daniel J. Solove, A Taxonomy of Privacy, 154 U. PA. L. REV. 477, 526 (2006). See also, e.g., Jane R. Bambauer, Other People’s Papers, 94 TEX. L. REV. 205 (2015) (discussing third parties and private individuals’ information); William Baude & James Y. Stern, The Positive Law Model of the Fourth Amendment, 129(7) HARV. L. REV. 1821 (2016) (discussing the Fourth Amendment and privacy); Steven M. Bellovin et al., It’s Too Complicated: How the Internet Upends Katz, Smith, and Electronic Surveillance Law, 30(1) HARV. J. L. & TECH. 1 (2016) [hereinafter Bellovin, et al., It’s Too Complicated] (considering metadata and privacy); Bernard Chao et al., Why Courts Fail to Protect Privacy: Race, Age, Bias, and Technology, 106 CAL. L. REV. __ (2018) (reflecting that average citizens do not fully understand the amount of access police have to their information); Thomas P. Crocker, The Political Fourth Amendment, 88(2) WASH. U. L. REV. 303 (2010) (describing the “third party” doctrine); David A. Harris, Riley v. California and the Beginning of the End for the Third-Party Search Doctrine, 18 U. PA. J. CONST. L. 895 (2016) (considering the application of the third-party doctrine to cloud computing); Olivier Sylvain, Failing Expectations: Fourth Amendment Doctrine in the Era of Total Surveillance, 49 WAKE FOREST L. REV. 485 (2014) (discussing warrant requirements); Joseph T. Thai, Is Data Mining Ever a Search Under Justice Stevens’ Fourth Amendment?, 74 FORDHAM L. REV. 1731, 1733 (2006) (“the Court held decades ago that when we convey information to a third party, we give up all constitutionally protected privacy in that information”). But see Monu S. Bedi, Facebook and Interpersonal Privacy: Why the Third Party Doctrine Should Not Apply, 54(1) B.C. L. REV. 1, 5 (2013) (considering “the concept of interpersonal privacy to examine how to extend Fourth Amendment protection to Facebook communications”). 246 Kerr, Third-Party Doctrine, supra note 8, at 563. 243 244 Electronic copy available at: https://ssrn.com/abstract=3005714 2018] FOURTH AMENDMENT IN THE DIGI...
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Fourth Amendment and the Third-Party Doctrine in the Digital Age

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Fourth Amendment and the Third-Party Doctrine in the Digital Age
Generally, Ormerod and Trautman present issues of the Fourth Amendment of the
third-party doctrines that trouble jurists and raise scholars' ire. One of the critical issues
touched by the Fourth Amendment concerns Court's distinction between content and
metadata during the digital era. The issue has compelled the Supreme Court to change the
Fourth Amendment rules to cover digital technologies. Carpenter requests that the
government issue a warrant to obtain cell phone's location data records, known as Cell Site
Information Site (CSLI). Professor Orin S. Kerr points out that the Supreme Court holds the
future of surveillance law.
Critical Issues Raised
In the introduction part of the description, the authors discuss the government's
authority to obtain cell site location information (CSLI) from telecommunication providers
without a probable cause warrant. Section 2703(d) of the Stored Communication Act gives
the government and the police department authority to use force methods to obtain CSLI.
However, the Act raises ethical concerns by stating that the government should compel
disclosure of CSLI when there are specific and articulate facts showing that the CSLI is
relevant and material to an ongoing criminal investigation. Here, ethical questions that may
arise concern the integrity of cops, detectives, and the entire police department. Cops,
detectives, and court officials may be tempted to misuse this power to their advantage when
there is a conflict between personal and government interests.
Carpenter implicates a third-party doctrine where people do not expect private
information known or possessed by a third party. Third-party doctrine is not applied to many
courts in various states as it is believed to disparage the constitutional rules in force. The
rapid growth of digital technologies has enhanced proper personal communications, sensitive

urgent delivery of information, and business records within the Court. The Court has avoided
addressing the third-party doctrine instead of sticking to Fourth Amendment rules imposed
for digital technologies such as thermal imaging cameras, GPS, and smartphones trackers.
Metadata, personal Communications, and Business Records
The third-party doctrine is limited by distinguishing the content and non-content
information. In Katz, government agencies record conversations from the outside booth as
people make calls from inside a public phone. This sounds like a breach of privacy rules, and
individuals may opt not to use public phones to make their calls. The government ensures that
the parties do not engage in offensive or unmannerly conversations by recording the
conversations. The Court of New York invalidated a state statute used by Police to record
people's real-time conversations.
Traditional Fourth Amendment Search Analysis
The government searches for ways, reviewing how the Court responds to advances of
digital technologies. Firstly, the government physically trespasses the property of the
suspected person to obtain the information. In this way, the government obtains or exposes
people's private information they had sought not to disclose. These Fourth amendment
searches contain moments of surprise as they do not conduct an outside search of a property,
but inside also. The second way is through violating the privacy test of reasonable
expectations. The government may place a listening device on public phones to search for the
defendant's conversation. In this case, the government does not conduct physical trespasses
on an individual, but it is accused of violating the Fourth Amendments rights of the
defendant. Pre-digital technologies in human flight expectation is another way the
government uses to conduct its searches. The Court explores the impacts of technologyenabled Fourth Amendment expectations of privacy.

The Approach of the Court towards Fourth Amendment and Digital Technologies
Under this distinction, there are three main discussions: aiming the thermal imaging
camera, GPS tracking of the suspect, and cell phone search. For the thermal imaging camera,
we explored a court for Danny Kyllo in the United States, 2001. The federal agents suspected
Kyllo of growing marijuana in his home. The federal agents brought the thermal imaging
camera to Kyllo's home as marijuana needs a high-intensity lamp if it is grown indoors. All
objects emit radiations, but many of them cannot be seen by naked eyes; hence, the infrared
radiations are visible through imaging cameras. These cameras convert the infrared radiations
into authentic images depending on the relative warmth. After the agents conducted the scan
in Kyllo's home, the results indicated his home was warmer than his neighbor's. This is the
evidence that Kyllo used to grow marijuana in his home; that's w...

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