The Privacy Paradox: Is the stuff on my cell phone really mine?

  • October 18, 2019
  • by Barbara J. Klas, Esq.

Most of us own a smartphone.  And, if you’re like me, you keep a lot of important stuff on your phone.  In this constantly evolving world of everything digital, the question remains:  do I have a right to privacy in the records on my cell phone? In a closely watched recent United States Supreme Court decision, the high court says YES in Carpenter v. United States.

On June 22, 2018, in a landmark 5-4 decision, the United States Supreme Court (SCOTUS) ruled in Carpenter that the Fourth Amendment protects cell phone location records.  In its far-reaching decision, the court held that a person’s historical cell site location records – that is, records of every place a person’s phone has been –  is a Fourth Amendment search, because obtaining such records violates the person’s “legitimate expectation of privacy in the record of her physical movements.” The court also held that accessing those records requires a search warrant. The court’s decision dramatically both expands the scope of the Fourth Amendment – which protects people from unlawful searches and seizures –  and updates it for modern times, providing new and robust constitutional safeguards to the right to privacy. As predicted, Chief Justice Roberts authored the majority opinion, reversing the Sixth Circuit’s decision. He was joined by Justices Ginsburg, Breyer, Sotomayor and Kagan. The remaining four justices, Justices Kennedy, Thomas, Alito, and Gorsuch each filed separate dissenting opinions.

Renowned eDiscovery expert Judge John Facciola, retired United States Magistrate Judge for the United States District Court for the District of Columbia, believes the Carpenter decision may signal the end of the Third-Party Doctrine.  The Third-Party Doctrine is a legal theory which holds that people who voluntarily give information to third parties – such as banks, phone companies, internet service providers (ISPs) or SaaS companies – have no “…reasonable expectation of privacy.”  The expectation of privacy is crucial to distinguishing a legitimate, reasonable police search from an unreasonable one. Judge Facciola agreed with the decision in Carpenter, because the Roberts’ court seems keenly aware that, “…we are now faced with an entirely different species of business record – something that implicates basic Fourth Amendment concerns about arbitrary government power much more directly than corporate tax or payroll ledgers. When confronting new concerns wrought by digital technology, this Court has been careful not to uncritically extend existing precedents.”  The court seems to understand the importance of electronic privacy, especially in light of the high court’s previous decisions in U.S. v. Jones (2011) which required a warrant before police placed a GPS tracker on a vehicle and Riley v. California (2014) which forbade warrantless searches of a cell phone during an arrest.  

Judge Facciola notes that settling a warrant standard for cell phone records access isn’t the end of the discussion, but just the beginning. I agree with Judge Facciola. Today, we all have a digital footprint, and the question of relevancy must be addressed, i.e. a search warrant can be issued only based on “probable cause,” but it must particularize what is to be searched and seized. As evidenced by Justice Roberts’ majority opinion in Carpenter, I believe more members of our judiciary will lean in this direction. After all, even our most senior judges now have cell phones and their respective right to privacy is impacted just like everyone else. Given the extent of everything digital in our lives and our respective digital footprints, for a consumer to give up “every historical file” would be overreaching and overly broad. No doubt much of the data would not be relevant to whatever the court was reviewing, especially in light of the fact that an individual’s digital footprint may be over 20 years old. Thus, relevancy is critical.

So, the good news is the SCOTUS decision in Carpenter may indeed be the start of the courts affording us more protections – and yes  “a reasonable expectation of privacy” – in our digital footprint beyond our cell phones — like my Facebook page, or the GPS location now on my iPhone etc.  What is really mine? Stay tuned.


Barbara Klas Esq Barbara J. Klas, Esq. is an account manager based in Casepoint’s Minneapolis/St.Paul office. Barbara supports national corporate and law firm clients with litigation management, electronic discovery, technology and consulting services.  She began her practice as a litigation attorney at Rider Bennett, LLP in Minneapolis where she focused on commercial, employment and personal injury defense litigation. You can connect with her on LinkedIn.

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