When it comes to rights against government surveillance, the U.S. Supreme Court’s 2018 decision in Carpenter v. United States was greeted as an occasion for dancing in the streets. In ruling that investigators need a warrant before obtaining historical cell-site location information, the Court seemed to announce a major break from the past: “When confronting new concerns wrought by digital technology,” the justices would refuse “to uncritically extend existing precedents.” But if Carpenter could be read to promise a revolution, each fresh decision attempting to implement it in the lower courts has highlighted that any paradigm shift remains substantially unfinished.
Nowhere was that division on better display this month than in the U.S. Court of Appeals for the First Circuit, where the full court split evenly — 3-3 — on whether a warrant is required when the government targets an individual’s home for long-term, unblinking camera surveillance. The district court had answered, to paraphrase, “of course it is,” reasoning that Americans have a reasonable expectation of privacy in “the whole of their travels in and out of their home” just as Carpenter recognized that individuals have an expectation of privacy in “the whole of their physical movements.” But a panel of the First Circuit reversed, “reject[ing] the proposition that Carpenter produced ‘a sea change’” and sticking to its own precedent. Judge David Barron, concurring, urged the full court to weigh the issue, which it in turn agreed to do.
Remarkably, though, for all the thought dedicated to this case — including a friend-of-the-court brief from the Reporters Committee highlighting the First Amendment issues at stake — the First Circuit deadlocked, failing to produce a majority opinion. Judge Barron persuaded two colleagues that the surveillance at issue was totalizing enough to require a warrant. But three other judges would’ve maintained that no process should be required to capture what a nosy enough neighbor could, at least in theory, have captured themselves, albeit with titanic effort.
The split was characteristic of untidy divisions in the lower courts post-Carpenter. The Seventh Circuit holds that this kind of camera surveillance never requires a warrant, though the Colorado Supreme Court disagrees — and the U.S. Supreme Court passed on an opportunity to resolve the dispute. As a recent petition for certiorari described, the Seventh and Sixth Circuits believe that Carpenter doesn’t govern real-time — as opposed to historical — cell-site tracking, while state supreme courts in Florida, Washington and Connecticut hold that it does. (The justices declined to weigh in on that question too.) And the constitutionality of yet other forms of location surveillance remains an underdeveloped question sure to prompt fierce disagreement, as the Fourth Circuit displayed in reviewing Baltimore’s spy plane program.
When the justices will next choose to shed some light on the limits to location surveillance is anyone’s guess. That isn’t to say there’s no rhyme or reason to the arguments unfolding in the meantime. Professor Matthew Tokson, in the first comprehensive study of decisions applying Carpenter, argues that a coherent test is gradually emerging from the decision — albeit one that may not be as protective as we might like. And he found that “overt lower court resistance to the groundbreaking Carpenter decision has been negligible,” even if some courts seem to be “engaging in indirect noncompliance.” Given time, clarity and consensus might be forthcoming.
But in the First Circuit, at least, clarity may have to wait.
The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.