The F e Fourth A Amendment, C Cell P ell Phones, an and Carpen enter er v. U United States (With s specia ecial b l bon onus g guest c cases es!) !) FEDERAL CRIMINAL PRACTICE SEMINAR, District of South Carolina November 2, 2017 Eric J. Brignac Assistant Federal Public Defender (EDNC) Eric_Brignac@fd.org
How the government sees the 4 th Amendment
How we’ve come to see the 4 th Amendment
Three 4 th Amendment Cases (So far) Before SCOTUS This Term • Carpenter v. United States (No. 16-402): Warrantless search & seizure of historical cell phone records. (To be argued 11/29/17). • Collins v. Virginia (No. 16-1027): Does the automobile exception extend to a vehicle parked a few feet from a private residence? • Byrd v. United States (No. 16-1371): Whether a rental car driver needs to be listed on the rental agreement to have a reasonable expectation of privacy in the rental car.
Carpenter v. United States Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.
Cell Site Location Information (CSLI)
Your cell p phone k knows A LOT a about y you: Call detail report typically gives: • date • time • target phone number • other phone number • duration • cell tower • Sector • latitude and longitude
What t does t s that t t tell u us? s? A L LOT Medial Information (phone calls and • visits to doctors offices) Sexual Information (phone calls and • visits to other individuals) Political Information (presence at • rallies and protests) Financial Troubles (phone calls and • visits to banks, pawn shops, payday lenders, etc.) Family information (when and where • you bring your kids to soccer practice) Religious Information (visits to • churches and priests)
Current 4 th Circuit Position? • Your client is out of luck. • United States v. Graham , 824 F.3d 421 (2016)(en banc) • The third-party doctrine means you have no privacy interest in information you “voluntarily” give to a 3 rd party. • You give this information to your cell phone provider, so the police can obtain it without a warrant. • BUT “The Supreme Court may in the future limit, or even eliminate, the third- party doctrine.”
Mr. Carpenter’s Arguments • United States v. Jones (2012) (GPS tracking) & Riley v. California (2014) (cell phone searches) stand for proposition that new technologies cannot reduce the historical expectation of privacy that have always existed. • People have their cell phones with them all the time (75% of people report having them in arm’s reach most of the time). The government can get unpresedented information about people from CSLI that was practically unavailable historically. • Even the law recognizes this expectation of privacy in CSLI • 47 U.S.C. 222 prohibits disclosure to private entities • Multiple states require a warrant for this information
Mr. Carpenter’s Arguments Continued • CSLI may be less precise that GPS tracking, but it is precise enough to invoke privacy concerns. • That the government uses it at trial to “prove” where you were belies the argument that it is not precise enough to worry about. • As towers become more numerous and sophisticated, CSLI will get only more and more precise. • These records are historical, making them a greater invasion of privacy than real-time. • It’s also a trespass on your “papers” (the argument to win over the originalists).
Mr. Carpenter’s Arguments Continued • The Third-Party doctrine should not be extended or applied here. • The information is much more sensitive than the bank records or individual phone calls from past cases. • The information is not “voluntarily shared.” • People need cell phones for work, family life, and safety (911, etc.). • You cannot turn off tracking information. Turning off the GPS does nothing to turn off CSLI • You can’t learn this information about yourself even if you wanted to. • The Court need not eliminate Third-Party doctrine. It can simply contextualize it as part of the overall analysis. • This is only going to get worse if you expand Third-party doctrine (internet of things, etc.)
The Government’s Arguments • Strong reliance on Third-Party doctrine. Users know that their cellular providers know where their phones are. • This information is not as precise as Mr. Carpenter states • The data in his case narrowed him down to 1,000 buildings in the Detroit area. • And, in any event, the quality of the information is irrelevant to the 4 th Amendment and imposing such a rule would involve too-complicated line drawing. • Developing technology may actually reduce the use of cell phone towers in favor of device-to-device technology. • The third-party doctrine has never depended on how happy one was to divulge the information.
The Government’s Arguments Continued • The government re-frames this as a simple question of providing evidence at trial. • When a third party has evidence relevant to a case, they can be compelled to testify, barring an evidentiary privilege. • The actors here are the cell phone companies, not the government. • The invasiveness of the technology simply isn’t a factor. • No one is making these companies keep this data. If the public outcry is strong enough, privacy-focused companies will emerge.
Is it our fault that we have a really good witness?
Two fundamentally different framings of the issue • Does the current set-up allow the government access to an unpresented level of highly-personal information involuntarily given to cell phone companies that completely untethers the third-party doctrine from its intellectual base? • Or, is this simply a case of the government compelling a witness with information relevant to a crime to testify at a criminal trial?
Really could go either way.
So what do we do for our clients?
1. Be Aware of the Intersection of Technology and the 4 th Amendment.
For good or ill, Carpenter is likely to change the game. • Depending on the logic used by Carpenter (regardless of outcome), the courts’ approach to technology and searches and seizures might be changing. • Or, really, you should be the lawyers helping to make that change.
Be very worri rried about drones • We should be ahead, not behind, of the law on this • Aerial surveillance cases are 25 years old & predate the revitalization of trespass • They don’t address long term tracking or Riley -style privacy • Ripe for renewed challenges • Particularly since trespass and tech are going hand in hand • Argue that drones are different-in- kind from prior surveillance cases.
Autom omated ed L Licen ense e Plate Reader ers Very similar issues to Carpenter Possible 3d party storage Long term tracking Technology unknown at the founding
Whatever r the Futu ture Holds
2. And if we lose Carpenter ?
HOPE IS NOT LOST!
• By the government’s own arguments in Carpenter , we know that these records are not magic. They are normal evidence that must still meet the admissibility thresholds of any evidence presented against your client. • The government will want to present this information in a “jury pretty” form like a spreadsheet or map. • Force them to disclose the source of the raw data. • If funds permit, get your own expert to review and ensure that the government’s interpretation of the data is supported • These are business records • Force the government to comply with FRE 803(6) • Have the records been authenticated under FRE 902(11)? • “Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.” • Remember, this stuff is new-ish to AUSA’s, too, so they will make mistakes.
What CSLI cannot show • Who had the cell phone at any particular time. • Do NOT say where “my client” was. Do not let the government witnesses say that. Say where “the phone” was. • People often use their partner’s phone • Precisely where the phone was • Your expert and the government’s expert will have to admit that CSLI is not as precise as the government’s presentation will imply.
Don’t Forget Daubert • CSLI is complicated. The government wants to present it as simple. • Your client was here on Tuesday evening. The crime happened here on Tuesday evening. Therefore, guilty. • The government may attempt to have the agent conducting the investigation testify as to it. • Object! Require an expert in cell tower data forensics. • Use your own expert to show the court that the government’s proffered testimony does not meet Rule 702’s standards. • The government may do this all by the book, but force them to do it by the book. • Even if you don’t get it excluded, you start laying the groundwork to show the court/jury that this information is complicated.
Bonus Fourth Amendment Cases Upcoming This Term!
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