Data Collection

Kris Sula

​Hello Street Law Advocates, 

When thinking about the Fourth Amendment and the protections that it offers, most Americans are quick to think about the more glaring protections. One might imagine the police attempting to search their home without a warrant or the police asking to search their car during a traffic stop. While these are great examples of some of the actions the Fourth Amendment protects against, for other actions it isn’t so clear. For example, does the Fourth Amendment protect against data collection by modern technologies? Some of these technologies are intuitive, things like phone call data, phone location data, and license plate readers. However, some things are less intuitive, things like your doorbell camera feed, face scanners, AI social media scrubbing. To tackle the question of whether the Fourth Amendment protects against these things, we can look at what courts have said in the past and use it to try to envision what the future of Fourth Amendment protections will look like. 

As technology advances, the prevalence of non-physical personal data has expanded dramatically. Information like location data gathered by your phone or smart car, health data gathered by a smart watch, and even video and audio gathered by home surveillance systems and video doorbells are all examples of non-physical personal information. This information is collected by third parties, stored by those parties, and used for their purposes. Information like this can be extremely valuable to law enforcement and is often unprotected by the Fourth Amendment’s warrant requirement. [1] 

First, we must look at how courts have ruled on this type of information previously, and what kind of protection that information should receive under the Fourth Amendment. Historically, information that an individual willingly shares with a third party is subject to what is known as the third-party doctrine. The third-party doctrine essentially states that any information that a person willingly shares with a third party is not subject to Fourth Amendment protection. [2] The doctrine was fleshed out in two major Supreme Court cases in the 1970’s — United States v. Miller and Smith v. Maryland. [3] In both cases, the Court ruled that information shared with a third party would not receive Fourth Amendment protection. [4] This went on for a while without much controversy — that is until the mid 2000’s. 

With the rise of mobile telephones, wearable tech, and people generally creating more data that was being shared with third parties, law enforcement saw an opportunity. Due to the third-party rule, law enforcement was able to get their hands on all this data unchallenged. This data was hugely valuable to law enforcement because it provided them with a plethora of personal information about individuals without the need for a warrant. Carpenter v. United States reeled in the seemingly free reign that law enforcement had under Miller and Smith.

In Carpenter v. United States, the Court ruled that while the third-party doctrine did cover information that was voluntarily shared, an individual's phone location data was not covered under the doctrine. [5] The Court reasoned that since cell phones have become so commonplace in our lives, coupled with the fact that phones are designed in a way that they must collect and share data gathered with third parties — the information could not be considered voluntarily shared. [6] Carpenter was the first time that the United States Supreme Court ruled that the third-party doctrine’s power was not absolute. [7] Although the Court rejected applying the third-party rule from Miller and Smith, the Court did not overrule those decisions, leaving the third-party rule intact at least for now.

The Carpenter decision gives us the ability to look ahead and make some predictions about the future of Fourth Amendment protections to non-physical data. As more and more people access smart cars, wearable tech, and home surveillance systems, the data collected by these systems will only increase and courts will be left grappling with the question of whether or not this data should be subject to Fourth Amendment protections. If the Carpenter ruling is any indication, it shows that courts may change their ideas about how third-party rule should be applied depending on the degree of privacy individuals. Technology which collects and shares data — yet is so essential to our lives — may force courts to broaden the scope of Fourth Amendment protections in order to strike a balance.  Court are having to find a middle ground between allowing the government to carry out its law enforcement functions while at the same time keeping the rights of Americans protected. 
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Sources: 
1. The Fourth Amendment in the Digital Age, The Brennan Center for Justice, https://www.brennancenter.org/our-work/policy-solutions/fourth-amendment-digital-age
2. Third Party Doctrine, Injustice for Justice, https://ij.org/issues/ijs-project-on-the-4th-amendment/third-party-doctrine/ 
3. The Third Party Doctrine and The Fourth Amendment, Eisner Gorin LLP, https://www.thefederalcriminalattorneys.com/third-party-doctrine 
4. Id. 
5. Carpenter v. United States, 585 U.S. ___ (2018) 
6. Id. 
7. Explaining the Fourth Amendment: What counts as persons, houses, papers, and effects?, Pacific Legal Foundation, https://pacificlegal.org/explaining-the-fourth-amendment-what-counts-as-persons-houses-papers-and-effects/#part-1V:-Effects