Carpenter May Reveal a Recipe for Defense in High-Tech Criminal and Regulatory Cases

August 10, 2018Alerts White-Collar Compliance & Defense Alert

The U.S. Supreme Court has once again expanded the Fourth Amendment protections afforded to certain modern digital communications. And in doing so, the unusual five-justice majority led by Chief Justice Roberts has suggested a roadmap for white-collar defense lawyers to follow when strategizing their approaches to other high-tech cases.

In Carpenter v. United States, the court held that cellphone location records deserve heightened protection. The ruling marks the second time Chief Justice Roberts has authored a major decision on mobile technology. Four separate dissenting opinions were filed by Justices Kennedy, Thomas, Alito, and Gorsuch.

Cell phones – indispensable staples of our modern lives – con­tinuously connect to a set of radio antennas called “cell sites.” Each time a cell phone connects to a cell site, it generates a time-stamped record, known as cell-site location information, or CSLI. Wireless carri­ers collect and store this information for their own business purposes.

To law enforcement, however, CSLI can be useful in gleaning the whereabouts of a subject at a particular time in question. However, after the Supreme Court’s ruling in Carpenter, echoing the position taken by a number of individual state courts before it, the collection of this information is now to be subjected to a higher degree of Fourth Amendment scrutiny.

The underlying facts of Carpenter are straightforward and similar circumstances play out in state and federal law enforcement activities every day. After the FBI identified the cell phone numbers of several rob­bery suspects, prosecutors were granted court orders to obtain the suspects’ cell phone records under the Stored Communications Act, 18 U.S.C. § 2703(d), which states in part: “A court order for disclosure . . . may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”

The standard required by that statute is not as stringent as the “probable cause” standard typically employed when law enforcement officers seek a search warrant to explore, for example, an individual’s home or office.

Wireless carriers produced CSLI for petitioner Timothy Carpenter’s phone, and the government was able to obtain 12,898 location points cataloging Carpenter’s movements over 127 days – an astonishing average of 101 data points per day.

Carpenter’s lawyers argued that the data should be excluded from evidence at the trial because the government seized the records without first obtaining a warrant supported by probable cause.

Reasonable Expectation of Privacy

The Supreme Court sided with Carpenter. Chief Justice Roberts wrote: “A majority of the Court has already recognized that indi­viduals have a reasonable expectation of privacy in the whole of their physical movements. Allowing government access to cell-site rec­ords – which hold for many Americans the privacies of life … contravenes that expectation.”

Historical cell-site records present even greater privacy concerns than the GPS monitoring, Chief Justice Roberts said, because the use of CSLI gives the government “near perfect surveillance and allow[s] it to travel back in time to trace a person’s whereabouts, subject only to the five-year retention policies of most wireless carriers.”

Although most cell phone records are ordinarily considered to be routine business records of the service provider, the data rich CSLI at issue was, according to the Supreme Court, an “exhaustive chronicle of location information casually collected by wireless carriers[,]” making it extremely obtrusive to an individual’s privacy and distinguishing it from “the limited types of personal information” at issue in past cases.

Rejecting the government’s argument that the so-called third-party doctrine exempted CSLI from the warrant requirement, the Supreme Court held that CSLI is not “voluntarily shared” with a third party because a mobile telephone automatically logs cell-site records, without any affirmative act on the user’s part beyond merely turning the phone on.

Chief Justice Roberts concluded the majority’s opinion by writing: We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information. In light of the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection. The Government’s acquisition of the cell-site records here was a search under that Amendment.

Fertile Ground for Effective Advocacy

Carpenter is just the latest in a series of decisions in recent years that underscore the inescapable reality that the intersection of the law and technology is fertile ground for effective advocacy.

Modern criminal and regulatory defense matters require a grasp of both technology and a constantly evolving, frequently unsettled area of the law. While a significant technological component of such engagements was formerly the exception, it is now the rule.

Nearly every modern mode of business and personal communication involves some form of technology. Sophisticated computer networks with troves of data, e-commerce systems, millisecond trading platforms and mobile devices with more computing power than the machines that launched the astronauts responsible for the moon landing are the focal points of government investigations at every moment.

Understanding the collection, preservation and use of this type of modern evidence is critical, as is the ability to creatively and persuasively argue for an extension of existing law into the modern technological landscape under circumstances where the technology presents courts with new questions.

The White-Collar Compliance & Defense practice group at Fox Rothschild LLP is known for its sophisticated command of emerging issues at the intersection of technology and the law, including the specialized issues that arise in the criminal and regulatory environment when dealing with e-discovery, digital forensics, data privacy, social networking and cybersecurity. When technology adds a new dimension to an already complex situation, we can provide cost-effective legal advice tailored to the needs of the individual or business that is the subject of the investigation or prosecution.