Balancing Fourth Amendment Expectations in the Electronic Era

Carpenter v. United States and United States v. Microsoft, illustrate the difficulty of applying the Fourth Amendment's “expectation of privacy” standard to digital records. Both cases arose from the Stored Communications Act, 18 U.S.C. 2701, et seq. (SCA) , which established statutory procedures for the government to obtain customer data from electronic data providers. The Microsoft case involved a challenge to a request for email data that Microsoft stored outside of the United States and was resolved by the newly-enacted Clarifying Lawful Overseas Use of Data Act (CLOUD) Act in March 2018. The Carpenter case, which concerned subpoenaed electronic cell records, was decided on June 22, 2018 by the Supreme Court. See, Carpenter v. United States, No. 16-402.

The Stored Communications Act

Enacted over 30 years ago, the SCA protects the privacy of communications held by service providers. It provides the government three avenues for obtaining disclosure of customer communications or records from electronic communication service providers and remote computing service providers: 1) administrative subpoenas; 2) Section 2703(d) orders; and 3) Section 2703 warrants. Carpenter involves the use of a Section 2703(d) order, while Microsoft concerned a Section 2703 warrant.

To obtain a Section 2703(d) order, the government must show “reasonable grounds to believe that” the records are “relevant and material to an ongoing criminal investigation.” 18 U.S.C. §2703(d). It allows the government to obtain basic subscriber information, the contents of records stored by an electronic communication service for more than 180 days, and the contents of records stored by a remote computing service, as well as “other information pertaining to a subscriber.” 18 U.S.C. §2703(a), (b)(1)(B)(i)-(ii), (c)(1). However, the government must provide prior notice to the subscriber or seek to delay notice by up to 90 days. 18 U.S.C. §2703(b)(1)(B). In contrast, under a Section 2703 warrant, which requires a higher probable cause showing, the government can obtain the same records plus the contents of records stored for 180 days or less, 18 U.S.C. §2703(a), without the provider's having to provide prior notice to a subscriber, 18 U.S.C. §2703(b)(1)(A).

Carpenter: Does the Fourth Amendment Apply?

In Carpenter v. United States, the Court addressed what expectations of privacy, if any, individuals have in cell tower location records under the Fourth Amendment. The government, to aid an armed robbery investigation, obtained a Section 2703(d) order, using the lower standard of “reasonable grounds,” for Carpenter's cell-site location information that confirmed Carpenter's presence in the vicinity of the robberies. When challenged, the Court of Appeals for the Sixth Circuit held the government did not violate the Fourth Amendment because Carpenter “lack[ed] any property interest in the cell-site records created and maintained by [the cell provider]” and voluntarily conveyed the information to the cell provider. United States v. Carpenter, 819 F.3d 880, 888 (6th Cir. 2016).