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(This is a guest post by Arushi Gupta.)

On June 22nd 2018, in Carpenter v. USA, the Supreme Court of the United States engaged in an important discussion about the possible modification of the Third Party Doctrine to suit the digital age. The facts were concerned with the conviction of a robber, Timothy Carpenter ,facilitated by Cell-Site Location Information (CSLI) evidence, subpoenaed from various wireless carriers under the Stored Communications Act, 1994. CSLI is formed every time the cell phone interacts with a cell site and record of all activity is maintained with the service provider. The Petitioner argued that the disclosure was a “search” within the Fourth Amendment and required a search warrant. The Court of Appeals for the Sixth Circuit dismissed his appeal, holding that the Petitioner did not enjoy expectation of privacy in information he had turned over to third parties. The Petitioner moved the Supreme Court. The decision of the Court was split. The majority (5) held that Carpenter enjoyed reasonable expectation of privacy in CSLI and thus, it was a search. The dissents (4) disagreed with the majority over Carpenter’s expectation of privacy in CSLI. Further, there was disagreement about the application of search warrant over a subpoena (Alito J.). In this post, I will only deal with the third party doctrine.

The Majority

The analysis of the Court was informed by the historical understanding of the Fourth Amendment. Thus, the aim was to adjust the Fourth Amendment in order to bring its two central guideposts – securing “privacies of life against arbitrary power” (Boyd v. US) and placing “obstacles in the way of a too permeating police surveillance” (US v. Di re) – to the digital age.

Justice Roberts, joined by four others, delineated CSLI at the intersection of two lines of cases. The first set addressed a person’s subjective expectation of privacy in his physical location or movement. Here, the Court held that individuals enjoyed privacy in CSLI, as they would not expect the Government to chronicle their movements. In this respect, it referenced US v. Jones to distinguish the “rudimentary” form of surveillance employed in Knotts from Carpenter.

The second set applied the third party doctrine: “Once individuals voluntarily give up their information to a third party then they assume the risk of unauthorized disclosure.” For this purpose, the Court traced US v. Miller and Smith v. Maryland. According to the Court, both held that the nature of the information owned and possessed by the third party affected the expectation of an individual. In Miller, the bank records were “not confidential but negotiable instruments to be used in commercial transactions.” In Smith, the pen register had “limited capabilities.” Further, the voluntary disclosure of not-so-private information to third parties meant, “At any rate, the expectation is not one that society is prepared to recognize as reasonable.” The Court conflated the “subjective” observations and considered them in the “objective”.

The doctrine comprises two parts: (1) once individuals voluntarily expose matters to third party/public (2) then they assume the risk of unauthorized disclosure. “Assumption of risk” is a consequence of losing privacy and not the rationale behind the doctrine. The voluntariness is the antecedent.

Due to its proprietarian foundations, the text of the Fourth Amendment is tethered to the “physical”. Throughout its jurisprudence, this was not abandoned even as Katz v. US declared, “Privacy belongs to persons and not places”. This means that the Fourth Amendment is interested in only protecting information over which individuals exercise control and put in efforts to conceal from the public to keep with “themselves”. After Katz, there was still no privacy in public spaces such as open fields (Oliver v. US) or garbage outside the home (California v. Greenwood). In US v. Knotts, the Court denied expectation of privacy of vehicles on public thoroughfares, “Since the movements of the vehicle and its final destination had been ‘voluntarily conveyed to anyone who wanted to look,’ there was no privacy interest in the information obtained” (page 460). The third party doctrine is the analogous application of lack of expectation of privacy in public spaces to the digital era.

In order to reconcile these two sets, the Court concerned itself with tailoring the Fourth Amendment to a new phenomenon. First, the Court declined to extend the pre-digital doctrine, which applies to bank records and telephone numbers, to the qualitatively unique— revealing, retroactive, untargeted and long-term—nature of CSLI. It reiterated the observations in Knotts —about heightened expectations of privacy in invasive technologies that secretly monitor and catalogue information that contains the “privacies of life” and Jones —about the indispensability of cell phones in modern life making surveillance inescapable. Most importantly, it admitted that its tailoring was not only concerned with Carpenter but also, “with more sophisticated systems that are already in use or in development” (page 18).  

Second, the Court refused to extend the principle governing Miller and Smith to the digital age where most private information is stored with the third party. The Court noted, “The third-party doctrine partly stems from the notion that an individual has a reduced expectation of privacy in information knowingly shared with another. But the fact of diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely” (page 19). Thus, it formulated a doctrine where the nature of the information determines the expectation rather than the bright-line rule of voluntariness. The Court held, “We decline to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cellphone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection” (page 21).  

Further, it challenged the idea of voluntariness in disclosure of CSLI to the third party. It found that carrying a cell-phone is indispensable to participation in modern life. Individuals have no choice but to opt for the services of the third party and expose CSLI without any affirmative action in doing so. As a result, “in no meaningful sense does the user voluntarily ‘assume the risk’ of turning over a comprehensive dossier of his physical movements” (page 21). 

Therefore, the majority held it as a search within the meaning of the Fourth Amendment implying that CSLI requires the Government to prove “probable cause” for a search warrant. Since, the FBI had proceeded under the Stored Communications Act, which only requires proving “reasonable cause”, the “search” was unconstitutional.

Justice Kennedy’s Dissent

Kennedy J. delivered the first dissent. By focusing on the proprietan foundation (even after Katz) of the Fourth Amendment, he arrived at the conclusion that Carpenter enjoyed no reasonable expectation of privacy in property (CSLI) not belonging to him.

The dissent struck a blow to the shaky foundation of the Court’s redefined doctrine. First, the Court rephrased the doctrine from “no expectation of privacy” to “reduced expectation of privacy”. Second, it devolved a three-step for the doctrine to apply: (1) nature of the technology (2) nature of the information (3) the voluntariness of the action. Kennedy J. was quick to point, “The fact that information was relinquished to a third party was the entire basis for concluding that the Defendants in those cases lacked a reasonable expectation of privacy. Miller and Smith do not establish the kind of category-by-category balancing the Court today prescribes” (page 43). In this respect, in the actual third party doctrine, the nature of the information is irrelevant. Thus, by inference, the majority held that despite the voluntariness of the action, if the information were so sensitive to the “privacies of life” it could implicate an interest of privacy.

In an arguendo, he argued that even if the category test were correct still CSLI did not implicate the kind of privacy concern the majority asserted.

Justice Thomas and Alito’s Dissents

In their dissents, Thomas J. and Alito J. were deeply concerned with Carpenter’s seismic shift towards a privacy interest in property belonging to others by overlooking the text of the Amendment. Further, Thomas J. questioned Katz whereas Alito J. mentioned the uncertain consequences of Carpenter, which either would be the overturn of the doctrine or its limit to similar categories of data.

Justice Gorsuch’s Dissent

Gorsuch J. neither concurred with the majority nor the minority. Rather, he rejected the third party doctrine and the reasonable expectation test in favor of a property analysis of the Fourth Amendment and focused on whether the person has property interest (even if not a complete one) in the information. Since, Carpenter did not advance a property argument, Gorsuch J. did not conclusively hold on the issue.

The Third Party Doctrine in India

In India, District Registrar & Collector v. Canara Bank “rejected” the third party doctrine. The Court held, “Once we have accepted in Gobind and in latter cases that the right to privacy deals with persons and not places, the documents or copies of documents of the customer which are in a Bank, must continue to remain confidential vis-à-vis the person, even if they are no longer at the customer’s house and have been voluntarily sent to a Bank.”

(emphasis supplied)

This ratio contains two parts. Firstly, it deals with right to privacy as enshrined in persons—the customer. Secondly, it regards the customer’s house and the Bank as places. Thus, it concludes that notwithstanding the locational shift from the house to the Bank, the right to privacy is still enshrined within the person or the customer with whom the Bank shares a confidential relationship.

However, clearly the logic is fallible. If the Bank were considered as a person, which holds these documents, then it could be argued that the customer no longer enjoys the right to privacy in somebody else’s property. In Carpenter, the Court does not eschew this “control-oriented” jurisprudence and only squirrels it from all situations, whether the disclosure is voluntary or involuntary to voluntary disclosure of information. To bury the doctrine, one must challenge the rationale of “assumption of risk” by shifting towards privacy as dignity.

In K.S. Puttaswamy v. UOI, the Court held, “Privacy recognizes the autonomy of the individual and the right of every person to make essential choices that affect the course of life (paragraph 113), which may be infringed through an unauthorized use of such information (paragraph 85 of opinion of Kaul J.).” It located privacy in dignity by acknowledging the importance of self-determination and personality development.

After Carpenter, “voluntariness”, inter alia, instructs the reasonable expectation of an individual. But, Puttaswamy rejected this relation (paragraph 59, Nariman J. in Puttaswamy) and consequentially, “assumption of risk”, which treats privacy as a one-time waiver of your right to control your personal information. Rather, Puttaswamy instructed us about the principle of “informed consent”, which means that regardless of “voluntary” disclosure; consent has to be obtained for every subsequent disclosure. Further, it has to be informed and must fulfill reason (mental capacity to make informed decisions), independence (absence of coercion) and choice (the existence of actual alternatives) (page 199 of 567 in K.S. Puttaswamy v. UOI) and affirmative action.

Lastly, Puttaswamy dealt the final blow to the doctrine by recognizing “purpose limitation”—i.e. the reasonable expectation that the information will be utilized only for the purpose for which it was obtained (paragraph 66 in the opinion of Chandrachud J.). Thus, it redefined the expectation as allied not to voluntariness but “to the purpose for which the information is obtained”. Another is “content limitation”—i.e. only information necessary for the purpose would be collected through lawful and fair means (paragraph 184 in the opinion of Chandrachud J.).

To conclude, in India, an ideal test of reasonable expectation of privacy should bifurcate on two levels: (1) objective expectation of privacy on the basis of the nature of the information and (2) subjective expectation of privacy on the basis of constitutional values. Further, the latter should not be limited by the third party doctrine, as principles of dignity and autonomy override its control-oriented approach.