Decision in Carpenter v. United States expands privacy protections for newsgathering activities
Reporting the news takes journalists –– and their cellphones –– to a wide range of locations. The cellphone that a reporter carries to do her job creates a record, stored with the phone company, of that reporter’s location every minute that it’s connected to the network.
In a decision issued Friday in Carpenter v. United States, the U.S. Supreme Court clarified that, under the Fourth Amendment’s protection against “unreasonable searches and seizures,” the government must obtain a warrant to access this location data — which can paint an intimate picture of a journalist’s movements, unmask the identity of her sources, and reveal what stories she is investigating.
Though Carpenter centers around the Fourth Amendment rights of a criminal defendant, the protections it extends apply to everyone, including journalists. By creating a stronger check against improper requests for location data, the decision strengthens protections for journalists’ ability to gather information and inform the public.
Previously, the Supreme Court had held that the Fourth Amendment offered no protection to telephone call or bank records shared with third parties. Carpenter asked the Supreme Court to decide how this “third-party doctrine” applies to a specific type of modern electronic records: cellphone location information shared with phone companies.
In holding that the third-party doctrine does not apply to cellphone location data, the Court emphasized that individuals reasonably expect that this information –– which can reveal “familial, political, professional, religious and sexual associations” –– will remain private. The Court also reasoned that, because cellphones automatically transmit location information and are a ubiquitous and necessary part of modern life, users do not give up their rights to keep their location information private simply because their cellphone company has the data as well.
As the Reporters Committee explained in its friend-of-the-court brief in the case, the framers of the U.S. Constitution intended for the Fourth Amendment to protect the press from baseless government searches and seizures meant to retaliate against and harass them for their reporting. Carpenter updates this safeguard for the modern era, preventing the government from capitalizing on “seismic shifts in digital technology” that enable it to access information about a journalist’s movements and potentially use that information to chill a free press in ways that the framers sought to prevent.
Though a major victory for privacy and First Amendment advocates, the decision in Carpenter applies only to cellphone location data, and not to any other third-party or other types of records containing an individual’s location information.
As Justices Kennedy and Gorsuch suggest in their dissenting opinions, lower courts will have to figure out how to apply this decision in other contexts and to other types of information. Journalists should assume that the government still does not need a warrant to access other kinds of third-party records, such as internet and phone metadata, and the potentially vast array of other information that third-party electronic communications providers collect. While there may be laws that extend greater privacy protections to these other kinds of third-party records than the Constitution has been found to provide, the Fourth Amendment does not require that officials get a warrant to access them.
Even still, Carpenter may signal a larger doctrinal shift toward broader privacy protections for the massive quantities of sensitive user data collected by internet and phone companies whose products and services are central to life in the information age. Carpenter expands upon previous Supreme Court holdings in Riley v. California and United States v. Jones. These cases held respectively that law enforcement officers need a warrant to seize an individual’s physical cellphone and to install a GPS location tracker onto an individual’s car because these technologies could reveal unprecedented amounts of personal information. Carpenter is the first case to extend Fourth Amendment protection to a type of third-party record, and both of the Court’s major arguments in Carpenter could conceivably apply to other forms of cellphone and email data.
For all of these reasons, Carpenter itself provides important and necessary safeguards against government actions that could threaten press freedom, and could foreshadow even greater protections for data privacy and the ability of the free press to do its important work without fear of undue government surveillance.