Amicus Curiae Brief — Carpenter v. United States, 138 S. Ct. 293 (2017) (No. 16-402)

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FILED

No. 16-402 AUS J 26'7

| SORICE OF ter or -, |

IN THE .

Supreme Court of the United States

TIMOTHY IvoRY CARPENTER,

Petitioner,

—vY,—

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF OF SCHOLARS OF CRIMINAL PROCEDURE

AND PRIVACY AS AMICI CURIAE

IN SUPPORT OF PETITIONER

ANDREW G. FERGUSON HARRY SANDICK

UDC Davip A. CLARKE Counsel of Record

SCHOOL OF LAW KATHRINA SZYMBORSKI

4340 Connecticut Avenue JARED BUSZIN

Washington, D.C. 20008 PATTERSON BELKNAP WEBB

& TYLER LLP

1133 Avenue of the Americas

New York, New York 10036

(212) 336-2000

hsandick@pbwt.com

tot Curt

August 14, 2017 Counsel for Amici Curiae

TABLE OF CONTENTS

Page

INTEREST OF AAGICT CURIAB......0....00600.c00cesccessesas. 1

BUTERA Y CP PATIO NEI e csncescvcsinisccsesccscsecscoseses: 2

FFE eet dicta theneétabinnisienschans unttipaestialeiawnsanees 3

1. EXTENSION OF SMITHS REASONING

HI.

WOULD POTENTIALLY EVISCERATE

CITIZENS’ PRIVACY IN THE DIGITAL

I Scie seekcini innit ncicanlake damsedbeediamivaaeiokatdisuiriounsiies 3

Society's Relationship with

‘echnology Has Changed Both

Quantitatively and Qualitatively

pt Svs (ae is ORY Beene

Smith Addressed a Radically

Different Context Than This Case

and Should Be Limited to Its Facts

THE THIRD-PARTY DOCTRINE HAS

BEEN WIDELY CRITICIZED BY

FU e NIE aaidcasies chins cnnnasssbisctnuxectadpbatinlad ss

The Third-Party Ductrine Is Based

on a Questionable Theory of

gedit SES GR te Rl at TS ELESE a

The Third-Party Doctrine Does Not

Match Expectutions of Privacy in

SN ee I oiciccccecicccsavessnsecnciadcaseies 19

C. Justifications for the Third-Party

Doctrine Do Not Hold Up in the

Digital Age

CONCLUSION ..............

TABLE OF AUTHORITIES

CASES

United States v. Benford,

2010 WL 1266507 (N.1). Ind. March

DT STIS at ap Mio each arf RO

Chapman v. United States,

DBS U7.F. SID CIDR] ) ...~...00sccsecersscsessccverseee

Commonwealth v. Estabrook,

BT We BG CR oes vesccesecsscesevssesseecee.

State v. Earls,

70 A.Rd G30 (CN J. BOVS) ........020--scccerrerseees

Ferguson v. City of Charleston,

BRO AEE BF CODD) oases nance cconsoccsevsesossessncss

Georgia v. Randolph,

B47 U.S. TOR COGS) .......6006..-ccvccvesesovesceses

Hoffa v. United States,

386 U.S. 20S (1GGG) ...........ccrercrecccesscseveees

United States v. Jeffers,

AGA MI CIIIY oo onscieks sons sssdbaliaceoelcsen,

United States uv. Jones,

BGG U.S. 400 (2012) ...........cccesccsvresscrsserrees

Page(s)

sannacnaweuk 23

lek patesicte 9

jasetandelts 23

TABLE OF AUTHORITIES

(CONTINUED)

Page(s)

In re Application of the United States for

an Order Authorizing the Installation

& Use of a Pen Register & a Cailer

Identification System on Telephone

Numbers,

402 F. Supp. 2d 597 (D. Md. 2008) ................0 10

in re Application of the United States for

Historical Cell Site Data,

2010 WL 4286365 (S.D. Tex. Oct. 29,

BPO is nvviabananiesnsvacsstcceccsebcsnubuuescshaheth ee LO

Katz v. United States,

BOD TP DOT CED vcnsckccsccescaisicicticce ee a 2%, io

Kyllo v. United States,

OD UFR. BF CRD ces scvesccvernins sccéuspassul ee 12

United States v, Maynard,

Gis F. 36 644 GIL. Cie; SO se 12

Packingham v. North Carolina,

LSE BGR. BF GET D vcisvsicicusaccidiacictncanaee 6

People v. Weaver,

BS Fh. Fr Se I viv issetsernesace ee 12, 13

Riley v. California,

EGG BH. CE BETO GUO cvccvceseusieissvckaee G, 7, 23, 24

Smith v. Maryland,

oo Bk es LS, eee nonc cS passim

TABLE OF AUTHORITIES

(CONTINUED)

Stoner v. California,

United States v. Warshak,

631 F.3d 266 (6th Cir. 2010) .................4.

STATUTES

i BED oe. cesessdevecnssneseseveseessecves

OTHER AUTHORITIES

Gerald G. Ashdown, The Fourth

Amendment and the “Legitimate

Expectation of Privacy,” 34 Vand. L.

INLD ci cn cacnsceebstensencerascccoseces

Jack M. Balkin, Essay: The Constitution

in the National Surveillance State, 93

I OO... cccccocsnnnesevarsccecsees

James Beck et al., The Use of Global

Positioning (GPS) and Cell Tower

Evidence to Establish a Person's

Location—Part IT, 49 Crim. law.

Bull. 8 (Summer 2013)................... Sa

Steven M. Bellovin ct al., /t’s Too

Cumplicated: How the Internet

Upends Katz, Smith, and Electronic

Surveillance Law, 30 Harv. J.L. &

ss cauenduanesenecs

TABLE OF AUTHORITIES

(CONTINUED)

Kiel Brennan-Marqucz, Fourth

Amendment Fiduciaries, 84 Fordham

36 "4 Ye

Susan W. Brenner & Leo L. Clarke,

Fourth Amendment Protection for

Shared Privacy Rights in Stored

Transactional Data, 14 J.L. & Pol'y

6 IEEE Nethucistncisapeimeninnbaacincbvecteedaensedbened

Nate Cardozo et al., Who Has Your

Back?: Protecting Your Data from

Government Requests, Elec. Frontier

PI: I I Oiled scucsesccocesssssacacontes

Brian Clark, The Company Behind

Roomba Cleaner Wants to Sell Home

Data to Apple, Amazon, or Google,

Business Insider (July 25, 2017)..............

Sherry Colb, What Is a Search: Two

Conceptual Flaws in Fourth

Amendment Doctrine and Some Hints

of a Remedy, 55 Stan. L. Rev. 119

SEINE aiccatimsalichabitinisaldes rasiapbachiaumiabdapasbsabemets

Mary I. Coombs, Shared Privacy and the

Fourth Amendment, or the Rights of

Relationships, 75 Calif. L. Rev. 1593

ent dae ATEN sie Berg cele cat ash

Vil

TABLE OF AUTHORITIES

(CONTINUED)

Chris Conley, Non-Content Is Not Non-

Sensitive: Moving Beyond the

Content/non-Content Distinction, 54

Santa Clara I... Rev. 821 (2014)................

CTIA, Annual Year-Knd 2016 Top-Line

Survey Results,

https://www.ctia.org/docs/default-

source/default-document-

library/annual-year-end-2016-top-

line-survey-results-final.pdf?sfvrsn=2.....

Richard A. Epstein, Privacy and the

Third Hand: Lessons from the

Common Law of Reasonable

Expectations, 24 Berkeley Tech. L.J.

De GD seccn cc cataccssecissivins<rssinawssesanssnssvens

Andrew Guthrie Ferguson, Big Data and

Predictive Reasonable Suspicion, 163

16. 8 5 2 a

Andrew Guthrie Ferguson, THE RISE OF

BIG DATA POLICING: SURVEILLANCE,

RACER, AND THE FUTURE OF LAW

Bese CCMRENET CIN FD oncccecccocccecesseccnssssecess

Andrew Guthrie Ferguson, The Smart

Fourth Amendment, 102 Cornell L.

Ba GET CE OD vce vnessesescesssvasssseniersesonsenness

Page(s)

vill

TABLE OF AUTHORITIES

(CONTINUED)

Page(s)

Susan Freiwald, Cell Phone Location

Data and the Fourth Amendment: A

Question of Law, Nut Fact, 70 Ma. 1.

ES titade AS AR ap ats ta Sa he SERS Aion aren 10

Susan Freiwald, First Principles of

Communications Privacy, 2007 Stan.

in, SU: IE iiss ccatin soeciicilincaimetindlininiannsinciannsave 18

Government Accountability Office,

Center for Science, Technology and

Engincering, Technology Assessment.

Internet of Things, Status and

Implication of an Increasingly

Connected World, GAO-17-75 (May

ss OTe a A MTS ES Is at ae aR 5

Governmeni Requests Report, Facebook,

https://govtrequests.facebook.com/cou

ntry/United%20States/20 16-H2/_........ cc ccceeee eens 26

Stephen E. Henderson, Beyond the

(Current) Fourth Amendment:

Protecting Third-Party Information,

Third Parties, and the Rest of Us Too,

ee eae 20

Stephen E. Henderson, Carpenter v.

United States and the Fourth

Amendment: The Best Way Forward,

26 William & Mary Bill of Rights JJ.

SI I i aie itrccensneaminengetinnnnriens 12

TABLE OF AUTHORITIES

(CONTINUED)

Stephen E. Henderson, Learning from

All Fifty States; How to Apply the

Fourth Amendment and lis State

Analogs to Protect Third Party

Information from Unreasonable

Search, 55 Cath. U. L. Rev. 373

GUID criccedecesensessanestenssaccetitbus tenteesteahinansens

Stephen Henderson, The Timely Demise

of the Fourth Amendment Third

Party Doctrine, 96 lowa L. Rev. Bull.

PE OE sic simientitctenevecvomressesosi push emerichoes

Spenser Hsu, Court: Warrantless

Requests to Track Cellphones,

Internet Use Grew Sevenfold in D.C.

in Three Years, Wash. Post (July 18,

Internet/ Broadband Fact Sheet, Pew

Research Center (Jan. 12, 2017),

http://www.pewinternct.org/fact-

sheet/internet-broadbanwW.....................65,

Margot E. Kaminski, Robots in the

Home: What Will We Have Agreed

To?, 51 Idaho L. Rev. 661 (2015)..............

Page(s)

Scaconnonanl 9

TABLE OF AUTHORITIES

(CONTINUED)

Page(s)

Margot E. Kaminski & Shane Witnov,

The Conforming Effect: First

Amendment Implications of

Surveillance, Beyond Chilling

Speech, 49 U. Rich. L. Rev 465 (2015)................. 14

Orin S. Kerr, Applying the Fourth

Amendment to Internet

Communications: A General

Approach, 62 Stan. L. Rev. 1005

EUETIIET sii ccoceiiecva-s hicvkonedwcinidprianiaseteieinmrncsssspeaniinthaveuvetih 25

Orin S. Kerr, The Case for the Third-

Party Doctrine, 107 Mich. L. Rev. 561

SI ec dics inresaceesianieoraalensetisbuiasnieenies 15, 21, 20

Matthew B. Kugler & Lior Jacob

Strahilevitz, Actual Expectations of

Privacy, Fourth Amendment

Doctrine, and the Mosaic Theory,

So Fee eS ener 15

Wayne R, La Fave, SEARCH AND

SEIZURE, A TREATISE ON THE FOURTH

ADERPEOSE IE CBG OG. BOLE) on... scccccsescesccsccecescescsees 16

Law Enforcement Requests, Lyft,

https://help.lyft.com/he/en-

us/articles/2 142 18437-Law-

Enforcement-Requests ...............-......-.00006 anieinsies 25

TABLE OF AUTHORITIES

(CONTINUED)

Arnold H. Loewy, 7he Fourth

Amendment as a Device for Protecting

the Innocent, 81 Mich. L. Rev. 1229

RII Cadusicen's scosieusseasunarvsuvidounenixcckeenetintnnisanes

Lyft Information Request Report — 2015,

Lyft, https://lyft-

assvts.s3.amazonaws.com/helpcenter/

Drive%20With%20Lyft/Lyft%20Tran

sparency%20Report%20-

SEDOBD LG MDOLE EL ono. cccseccsceossesressse0e0s.

Alex Matthews & Catherine Tucker,

Government Surveillance and

Internet Search Behavior (April 29,

Jonathan Mayer, Patrick Mutchler, &

John C. Mitchell, Evaluating the

Privacy Properties of Telephone

Metadata, 113 PNAS 5536 (May 17,

Mobile Fact Sheet, Pew Research Center

(Jan. 12, 2017),

http://www.pewinternet.org/fact-

mS tnt Saag a SS ir oe sy Si es erasey eo sees

Page(s)

xil

TABLE OF AUTHORITIES

(CONTINUED)

Page(s)

Deirdre K. Mulligan, Reasonable

Expectations in Electronic

Communications: A Critical

Perspective on the Electronic

Communications Privacy Act, 72 Geo.

ee as Bs RE I iii ve cbdsdcccicediciecnianencpneas

OECD Digital Economy Outlook (aris:

OECD Publishing, 2015),

http://dx.doi.org/10.1787/9789264232

Re RE NERS ARENA L | TETRIS Soil 28 SH te DR are an Le ee

Scott R. Peppet, Regulating the Internet

of Things: First Sleps Toward

Managing Discrimination, Privacy,

Security, and Consent, 93 Tex. L.

Sn Ce I ots pea taaniened dav ensuniineneiechiobeesahegenintuie

Neil M. Richards, The Dangers of

Surveillance, 126 Harv. L. Rev. 1934

SR cut hn ieha ten sith cdclube pabdunh ecbveisucmesinascubeabmessocsiiea

Jed Rubenfeld, The End of Privacy, 61

i NT Oe i aaa sancccessiabimasesions

Stephen Rushin, The Judicial Response

to Mass Police Surveillance, 2011 U.

Bs ck RE. Ge UE 8 EE iviviceevtesccccseceseciess

Andrew D. Selbst, Contextual

Expectations of Privacy, 35 Cardozo

Te ENE ETE as a ee ea a MS

Xill

TABLE OF AU'THORITIES

(CONTINUED)

Christopher Slobogin, PRIVACY AT RISK:

THE NEW GOVERNMENT

SURVEILLANCE AND THE FOURTH

AMENDMENT (20077)...........csccessseeeessesseees

Daniel J. Solove, Digital Dossiers and

the Dissipation of kourth Amendment

Privacy, 75 S. Cal. Law Rev. 1083

CPOE Silintavosensthichiminiadadoneprighidinseesseagensencen

Katherine J. Strandburg, Home, Home

on the Web and Other Fourth

Amendment Implications of

Technosocial Change, 70 Md. L. Rev.

Be ED sscncatoneabansaindiinnndpissaunnensunnexsenss

Scott E. Sundby, Everyman's Fourth

Amendment: Privacy or Mutual Trust

Between Government and Citizen?, 94

Colum. ].. Rev. 1761 (1004)..............0.2...

Matthew Tokson, Automation and the

Fourth Amendment, 96 Iowa L. Kev.

nen canomneieeibar iets

Matthew Tokson, Knowledge and Fourth

Amendment Privacy, 111 Nw. U. L.

i so: sc cewedesvmiiesiecosen

Transparency Report, Uber,

https://transparencyreport.uber.com/ ...

svevatronenlaiea 20

XlV

TABLE OF AUTHORITIES

(CONTINUED)

James Tomkovicz, Beyond Secrecy for

Secrecy’s Sake: Toward An Expanded

Viston of the Fourth Amendment

Privacy Province, 36 Hastings L.J.

U.S. Department of Commerce Internet

Policy Taskforce & Digital Economy

Leadership Team, Fostering the

Advancement of the Internet of

I. SEINE BE ci ctednderibicunndicbinasloevenscneiacs

Uber Guidelines for Law Enforcement

Authorilies, Uber,

https://www.uber.com/legal/data-

requests/guidclines-for-law-

enforcement-united-states/en-US/...............

Cleve R. Wootson, Jr., A Man Detailed

His Escape from a Burning House.

His Pacemaker Told Police a

Different Story, Wash. Post (Feb. 8,

I Wirechincaiecacars cacesas graummanants te aalauaunsovamanepoonsins

INTEREST OF AMICI CURIAF'

Amici curiae are forty-two scholars engaged in

significant research and/or teaching on criminal

procedure and privacy law. See Appendix A (listing

individual scholars joining this brief). This brief

addresses issues that are within amici’s particular

ureas of scholarly expertise. ‘They have a shared

interest in clarifying the law of privacy in the digital

era, and believe that a review of scholarly literature

on the topic is he}pful to answering the question in

this case.

‘ Pursuant to Rule 37.6, amici curiae certifies that this brief was

not written in whole or in part by counsel for uny party, and no

person or entity other than amici curiae and its counsel has

made a monetary contribution to the preparation and

submission of this brief. Letters from the parties consenting to

the filing of this brief have been filed with the Clerk of the

Court.

SUMMARY OF ARGUMENT

This case presents an opportunity to reconsider

the Fourth Amendment in the digital age. Cell

phones are only one of the many new and pervasive

digital technologics which automatically collect and

reveal intimate personal data, such as Cell Site

Location Information (“CSI.1”), to third parties. This

Court should resist extending the reasoning of Smith

vu. Maryland, 442 U.S. 735 (1979) -a 38-year-old case

huilt on a faulty privacy premise—to the modern,

hyper-connected, technology-dependent world.

Instead, the Court should recognize that the new

realities of this world require new legal doctrines to

fit the privacy expectations shared by most

Americans.

Criminal procedure and privacy scholars are in

near-unanimous agreemcnt that an extension of what

some have called the “third-party doctrine,” which

holds that people lack a reasonable expectation of

privacy in information voluntarily conveyed to third

parties, could eliminate citizens’ privacy in the

modern age. CSLI (and other data transmitted to

third partics in the modern age) can reveal an

individual’s interests, friendships, activities, travel,

associations, beliefs, health concerns, financial

problems, employment, and education. Smith is

grounded in a pre-digital era, and cannot support

future application of the Fourth Amendment.

The trajectory and pace of technological change

further counsels against extending Smith. As the use

of “smart” devices and their related applications

steadily grows among Amcricans, so too docs the

volume, scope, detail, and type of intimate data

transmitted to third parties. An extension of Smith’s

reasoning would give law enforcement ever-

increasing access to the most private details of

individuals’ lives without a warrant or probable

cause.

As a matter of Fourth Amendment practice,

extending the third-party doctrine would curtail

digital privacy and encourage arbitrary government

intrusions into the lives of American citizens. As a

matter of Fourth Amendment theory, applying the

third-party doctrine to the digital world would

undersell the value of privacy, and contradict the

logic of Katz uv. United States, 389 U.S. 347, 359

(1967) (1967) (“Wherever a man may be, he is entitled

to know that he will remain free from unreasonable

searches and seizures.”). And, as a matter of

precedent, Smith offers an inapposite and inadequate

doctrinal foundation to support the future of a digital

Fourth Amendment.

ARGUMENT

I. EXTENSION OF SMITHS

REASONING WOULD

POTENTIALLY EVISCERATE

CITIZENS’ PRIVACY IN THE

DIGITAL AGE

The Government and the Sixth Circuit both

relied heavily on Smith v. Maryland in this case,

drawing an analogy between the dialed phone

numbers addressed in Smith and the CSLI addressed

here. But the analogy is flawed on both technological

and doctrinal grounds. Given the profound

technological advances of the last 38 years—-and

socicty’s drastically changed relationship’ with

technologies requiring’ third-party providers—

upholding CSLI tracking on the basis of parallels to

long-vbsulete technology would lead to a substantial

reduction in privacy in the modern cra. This Court

should limit the holding of Smith to its particular

facts.

A. Society's Relationship with

Technology Has Changed Both

Quantitatively and Qualitatively

Since Smith

The embrace of digital third-party services has

quantitatively and qualitatively reshaped society's

relationship with technology. The vast majority of

Americans today are digital citizens—and reliance on

connected devices is only growing. Pew Research

Center reports that today 95 percent of adult

Americans use cell phones, 90 percent use the

Internet, 77 percent own smartphones, and 70

percent use social media.2 The U.S. Department of

Commerce Internet Policy Taskforce estimates that

“between the years of 2015 and 2020, the number of

connected devices in the United States will nearly

double from 2.3 billion to 4.1 billion.” The

2 Mobile Fact Sheet, Pew Research Ctr. (Jan. 12, 2017),

http://www. pewinternet.org/fact-shect/mobile/;

Internet/Broadband Fact Sheet, Pew Research Ctr, (Jan. 12,

2017), http://www.pewinternet.org/fact-sheet/internet-

broadband/.

2 U.S. Department of Commerce Internet Policy Taskforee &

Digital Economy Leadership Team, Fostering the Advancement

of the Internet of Things, 4 (Jan. 2017), apatlable at

https://www.ntia.doc.gov/files/ntia/publications/iot_green_paper_

01122017.pdf.

Organisation for Economic Cooperation § and

Development (“OECD”) reports that in OECD

countries, including the United States, a family of

four today has ten devices connected to the Internet

in their houscho!ld, with that number expected to

grow to 50 devices by 2022.1. Smart devices have

proliferated inside Americans’ homes, cars, and even

their bodies.®

Virtually all these connected devices and their

associated applications transmit information through

third-party providers. All modern communication

tools—including e-mail, text, cloud-based photo

storage, Voice over Internet Protocol, iMessage,

Twitter, Google chat, Instagram message, and many

others-—depend on cable, ISP, Bluetooth, phone, and

Wi-Fi services run by third parties. See Matthew

Tokson, Automation and the Kourth Amendment, 96

lowa |. Rev. 581, 602-04 (2011). Smartphones,

smart homes, smart cars, and smart medical devices

connected through the Internet of Things are only

“smart” because of third-party interconnectivity.

Andrew Guthrie Ferguson, JVhe Smart Fourth

Amendment, 102 Cornell L. Rev. 547, 557-59

* OECD Digital Economy Outlook, 245 (Paris: OECD

Publishing, 2015),

http://dx.dvi.org/10,1787/9789264232440-en.

5 Government Accountability Office, Center for Science,

Technology and Engineering, Jechnology Assessment: Internet of

Things, Status and Implication of an Increasingly Connected

World, GAO-17-75, at 16-18 (May 2017); see also Scott R.

Peppct, Regulating the Internet of Things: First Steps Toward

Managing Discrimination, Privacy, Security, and Consent, 93

Tex. L. Rev. 85, 103-04 (2014) (discussing implantable hea!th

devices).

(2017). Millions of people share political and cultural

opinions, news, and beliefs on third-party social

media platforms. See Packingham v. North Carolina,

137 S. Ct. 17380, 1735 (2017). Internet searches and

artificially intelligent assistants answer the most

intimate and arcane questions through third-party

search engines. See United States v. Jones, 565 U.S.

400, 417 (2012) (Sotomayor, J., concurring)

(acknowledging the revealing nature of internet

searches). Personal photographs, calendars,

shopping lists, medica) prescriptions, and an

expanding network of contacts are housed in third-

party sturage. See Riley v. California, 134 8. Ct.

2473, 2491 (2014). Third-party data can be found in

credit reports, employment histories, address

changes, and retail purchases. Andrew Guthrie

Ferguson, Big Data and Predictive Reasonable

Suspicion, 163 U. Pa. L. Rev, 327, 354-59 (2015).

Families share their lives virtually, companies store

their records electronically, and industries offer

third-party technologies to service these expanding

data-driven needs.

The ubiquity of third-party services has

qualitatively changed our relationship with

technology and each other. Indeed, one cannot

effectively participate in the modern world without

using these tovls. To connect with friends, apply for

jobs, receive medical services, or save photos from a

family vacation, one must constantly transmit

personal, “trackable” data to third-party services.

Oftentimes these services collect location and other

information through automation and without the

user’s knowledge or voluntary consent.

Third-party collection of intimate, personai

data will only grow in the future. Companies have

become adept at monetizing personal data, providing

an ever-increasing incentive for them to collect more

of it. Advances in connected technology will greatly

expand the information that can be gleaned from

data collected by third-party providers, going far

beyond what is currently possible with CSLI data.®

This will include the “content” of what is sent and

saved, not merely the more neutral-seeming

locational information that is at issue in this appeal.

The continuous data collection by smart

devices and networks—from smart heating systems

to smart heart stents—provides “a revealing montage

of the user's life.” Riley, 134 S. Ct. at 2490. For

example, researchers have found that by simply

studying vast sets of phone records they can predict

who is in a relationship, sick, or involved in illicit

activities.’ Extending what some have called the

third-party doctrine to digital third-party services

could exempt all of this information from Fourth

Amendment protection, potentially eliminating

individual! privacy in the modern age. See Margot E.

Kaminski, Robots in the Home: What Will We Have

Agreed To?, 51 idaho L.. Rev. 661, 670 (2015).

® See Brian Clark, The Company Behind Roomba Cleaner Wants

to Sell Home Data to Apple, Amazon, or Google, Business Insider

(July 25, 2017).

7 Jonathan Mayer, Patrick Mutchler, & John C. Mitchell,

Evaluating the Privacy Properties of Telephone Metadata, 113

PNAS 5536, 5540 (May !7, 2016).

B. Smith Addressed a Radically

Different Context Than This Case

and Should Be Limited to Its

Facts

Smith was grounded in the particular contcxt

of dialed telephone numbers and mid-‘'wentieth-

Century telephone routing. In Smith, the Court

reasoned that Smith had no subjective expectation of

privacy in the numbers he dialed because he very

likely knew that the telephone company recorded the

numbers of his long-distance phone calls. Smith, 442

U.S. at 742. His monthly bills revealed that the

telephone company recorded his dialed phone

numbers. /d. ‘The telephone company also offered to

check for overbilling and to identify callers making

“annoying or obscene calls.” Id. at 742-43. In short,

because Smith affirmatively acted by dialing the

phone numbers and had been informed repeatedly

that the information was collected, he voluntarily

conveyed the information to the third party, which in

turn could choose to turn those numbers over to the

government. Jd. at 743-44. Nothing about the

content of the communications was shared, only the

identity of the individuals or businesses with whom a

person communicated. See id.

When Smith was decided, suciety’s relationship

ta technologies that transmitted information to third

parties was very different than it is today.’ The use

* Lower courts and states have struggled with the third-party

doctrine in light of the increasing interconnectedness of modern

society, with numerous jurisdictions rejecting its relevance to

the modern era or limiting it to the facts of existing pre-digital-

era cases. See, e.g., Commonwealth v. Estabrook, 472 Mass. 852

(2015) (holding that a warrant was required to collect two weeks

of such tuols was limited, and the transmission of

information to third parties was clearly disclosed to

users. But see Smith, 442 U.S. at 750 (Marshall J.,

dissenting) (“[U|nless a person is prepared to forgo

use of what for many has become a personal or

professional necessity, he cannot help but accept the

risk of surveillanee. . . . It is idle to speak of

‘assuming’ risks in contexts where, as a practical

matter, individuals have no realistic alternative.”).

More foundationally, the privacy implications of !ong-

term, aggregated locational tracking from digital

devices dwarf the privacy considerations in Smith.

And extending Smith’s reasoning to define privacy

today would have consequences beyond the criminal

justice context, creating a chilling surveillance threat.

Indeed, the differences between this case and Smith

overwhelm any similarities.

First, as with all old-fashioned telephones, the

user in Smith had to actively transmit numerical

information to use the device {and thus reveal!

personal information). By contrast, cell phones can

be tracked without the user making a call or sending

a text. Cell phones periodically (roughly every 7

seconds) transmit a “registration” signal containing

the phone’s unique serial number. See, e.g., James

Beck et al., The Use of Global Positioning (GPS) and

Cell Tower Evidence to Establish a _ Person's

Location—Part II, 49 Crim. Law. Bull. 8 (Summer

of CSL); State v. Karis, 70 A.3d 630 (N.J. 2013) (holding that a

warrant was required to obtain cell phone tracking information);

see also Stephen E. Henderson, Learning from All Fifty States:

How to Apply the Fourth Amendment and Its State Analogs to

Protect Third Party Information from Unreasonable Search, 55

Cath. U. L. Rev. 373 (2006).

2013).9 Simply by possessing a cell phone, an owner

is revealing his or her location. ‘This requires no

affirmative act. Thus, CSLI cannot be analogized to

Smith’s reasoning, which cquated affirmative use

(dialing a number) with a relinquishment of an

expectation of privacy.

Second, Smith turned in large part on the

Court’s conclusion that the transmittal] of information

to a third party was “voluntary.” Smith, 442 U.S. at

432-33; but see id. at 750 (Marshall J., dissenting).

Today, cell phone users do not knowingly and

voluntarily convey their location information to their

cell phone companics. As a technological matter, the

tracking is automatic and takes place between a

phone and cell site without any volitional choice on

the user’s part. Indeed, recent empirical studies

show that the majority of ccll phone users do not even

know that cell phone companies may be tracking and

storing users’ physical locution via CSLI. One study

found that only 26.5 percent of all cell phone users

% Registration data is routinely used by law enforcement. See,

e.g., In re Application of the U.S. for Historical Cell Site Data,

2010 WL 4286365, at *1 (S.D. Tex. Oct. 29, 2010) (“[T]he

Government seeks continuvus location data to track the target

phone over a two month period, whether the phone was in active

use or not.”); United States v. Benford, 2010 WL 1266507, at *1

(N.D. Ind. Mar. 26, 2010) (government sought information

“identifying which cell tower communicated with the cell phone

while it was turned on”); In re Application of the U.S. for an

Order Authorizing the Installation & Use of a Pen Register & a

Caller Identification Sys. on Tel. Numbers, 402 F. Supp. 2d 597,

598 (1). Md. 2005) (government sought CSLI data identifying

“the physical location of the person in possession of the cc!

phone whenever the phone was on.”); see aiso Susan Freiwald,

Cell Phone Location Data and the Fourth Amendment: A

Question of Law, Not Fact, 70 Md. I.. Rev. 681, 705-08 (2011).

understand that their cel! phone provider is tracking

and storing information on their physica! location.

Matthew Tokson, Knowledge and Fourth Amendment

Privacy, 111 Nw. U. L. Rev. 139, 175-79 (2016).

Even fewer cell phone users are actually aware of

cell-signal-based location tracking. When the

minority of users who thought that tracking occurs

was asked as a follow-up question to describe how

their cell service provider collects information on

their location, only 12.7 percent of these users gave a

response that could be interpreted as referring to ce))-

site or cell-signal tracking. /d. at 177. Altogether,

only 3.3 percent of all cell phone users surveyed gave

responses that indicated awareness of CSLI tracking.

Id. Cell phone users simply do not voluntarily convey

any location information to their cell service

providers and do not know that they are

inadvertently conveying such information. This

shared but mistaken belief by the general public that

the possession of a cellphone does not submit

someone to constant, recorded location tracking

reflects the expectation of privacy that peonle have

about their location information.

Third, location tracking is far more invasive

than obtaining a monthly record of dialed numbers.

CSLI tracking can reveal everywhere that a person

goes for as long as he or she owns a cell phone—

which, for most of us, will be the remainder of our

adult lives. This data can track a_ person's

movements with precision, and wil] become only more

precise as technology improves, more cellular devices

are used, and more cell towers are built.'°

10 When petitioner ‘Timothy Carpenter's records were obtained

in 2011, CSLI was already able to pinpoint a person’s location

Information that reveals a person’s location can

reveal “trips the indisputably private nature of which

takes little imagination to conjure: trips to the

psychiatrist, the plastic surgeon, the abortion clinic,

the AIDS treatment center, the strip club, the

criminal defense attorney, the hy-the-hour motel, the

union meeting, the mosque, synagogue or church, the

gay bar and on and on.” People v. Weaver, 12 N.Y.3d

433, 441-42 (2009). This information becomes even

more revealing when aggregated and collected over

long periods of time. See United States v. Maynard,

G15 F. 3d 544, 562 (D.C. Cir. 2010) (affd on other

grounds sub nom Jones, 565 U.S. 400). Service

providers retain location data for long periods of time:

AT&T for five years, Sprint for 18 months, and

Verizon for one year. Pet. Br, at 20.

Location data therefore yields “a _ highly

detailed profile, not simply of where we go, but by

easy inference, of our associations—political,

religious, amicable and amorous, to name only a

within a .1 square mile area. Stephen LE. Henderson, Carpenter

v. United States and the Fourth Amendment: The Best Way

Forward, 26 William & Mary Bill of Rights J. (forthcoming

2017), available at

https://works. bepress.com/stephen_henderson/45/. Over the

past decade, the number of cell sites has increased from 195,613

to 308,334, a trend that will only continue as an ever-increasing

number of consumers demand ever-faster and more reliable cell

service. See CTIA. Annual Year-End 2016 Top-Line Survey

Results, https://www.ctia.org/docs/default-source/default-

document-library/annual-year-end-2016-top-line-survey-results-

final.pdf?sfvrsn=2 CSLI; cf. Kyl/o v. United States, 533 U.S. 27,

36 (2001) (“While the technology used in the present case was

relatively crude, the rule we adopt must take account of more

sophisticated systems that are already in use or in

development.”).

few—and of the pattern of our professional and

avocational pursuits.” Weaver, 12 N.Y. 3d at 442.

Such data gives much more information about a

person and his or her activities than does a list of

phone numbers dialed. It is a modern-day panopticon

of constant surveillance enabled by the necessary use

of a cellphone,

Lastly, the data at issue here is

distinguishable from that revealed in Smith because

it has expressive value, and allowing law enforcement

unfettered access to such information has far-

reaching consequences beyond impacting privacy. An

unchecked third-party doctrine creates a chilling

surveillance threat that threatens associational

liberty, free expression, and intellectual growth,

undermining the democratic health of the nation. See

Neil M. Richards, The Dangers of Surveillance, 126

Harv. L. Rev. 1934, 1936, 1940 (2013). Law

enforcement’s constitutionally unfettered access to

every third-party data point means any citizen

questioning the government—be they a journalist,

judge, protestor, or pariah—will be at risk of being

exposed through aggregated and collected personal

third-party data. ‘here is evidence that arbitrary,

invasive, or overbroad requests of third-party

providers have already proliferated, and will continue

to do so without a constitutional check. See Spenser

Hsu, Court: Warrantless Requests to Track

Cellphones, Internet Use Grew Sevenfold in D.C. in

Three Years, Wash. Post (July 18, 2017). The

awareness that the government may at some point—

even five years from now—review data revealing

one’s every movement will have chilling effects on

controversial or even merely embarrassing conduct,

diminishing the ability of individuals to exercise their

rights and freedoms. See Margot E. Kaminski &

Shane Witnov, The Conforming Effect: First

Amendment implications of Surveillance, Beyond

Chilling Speech, 49 U. Rich. L. Rev 465, 474 (2015)

(discussing studies that show changes in online user

habits in response to public disclosure of government

surveillance); Alex Matthews & Catherine Tucker,

Government Surveillance and MInternet Search

Behavior (April 29, 2015),

https://www.ftc.gov/system/files/documents/public_co

mments/2015/10/00023-97629.pdf (showing that

roogle searches for controversia] topics decreased

following the public revelation of the NSA’s internet

surveillance programs).

‘These crucial differences between Smith and

this case apply to all smart devices. Most devices are

designed to work automatically without user action,

affirmatively thwarting the user’s ability to make

voluntary choices about information they choose to

convey to third partics. These distinctions -and the

threats to privacy and liberty posed by wurrantless

collection of data from third parties—will only be

exacerbated as digital technology develops.

il. THE THIRD-PARTY DOCTRINE HAS

BEEN WIDELY CRITICIZED BY

SCHOLARS

For these reasons and others, almost every

scholar to have written on the subject has called for

the demise of the third-party doctrine enunciated in

Smith as applied in the digital context. Many

scholars have noted that the doctrine is based on a

questionable theory of privacy, as most people do not

think of information disclosed to others for a limited

purpose as no longer private for other purposes. See,

v.g., Gerald G. Ashdown, The lourth Amendment and

the “Legitimate Expectation of Privacy,” 34 Vand. L.

Rev. 1289, 1315 (1981); Daniel J. Solove, Digital

Dossiers and the Dissipation of Fourth Amendment

Privacy, 75 S. Cal. Law Rev. 1083, 1135 (2002).

Others have focused on the doctrine’s inaptness to

the expectations of privacy in the digital age. See,

eg., Tokson, Knowledge and Fourth Amendment

Privacy, 111 Nw. U. L. Rev. at 175-79; Matthew B.

Kugler & Lior Jacob Strahilevitz, Actual Expectations

of Privacy, Fourth Amendment Doctrine, and the

Mosaic Theory, 2015 Sup. Ct. Rev. 205 (2015);

Christopher Slobogin, PRIVACY AT Risk: THE New

GOVERNMENT SURVEILLANCE AND THE FOURTH

AMENDMENT 184—86 (2007). Although the doctrine

has a vocal defender, see Orin S. Kerr, The Case for

the Third-Party Doctrine, 107 Mich. 1. Rev. 561

(2009),'' the justifications offered do not hold up in

the digital age. This Court should decline to extend

the doctrine now, in line with the overwhelming

weight of scholarly literature on the topic.

11 Even Orin Kerr, the doctrine’s chief defender, admits that “[ijt

is the Lochner of search and scizure law, widely criticized as

profoundly misguided.” Kerr, The Case for the Third-Party

Doctrine, 107 Mich. L. Rev. at 563. Indeed, he notes, “[t}he

verdict among commentators has been freyuent and apparently

unanimous: The third-party doctrine is not only wrong, but

horribly wrong.” Jd.

A The Third-Party Doctrine Ils Based

on a Questionable Theory of

Privacy

The third-party doctrine’s central tenet is that

once an individual discloses information to any third

party for any purpose, no matter how confidential,

that citizen irrevocably sets aside any reasonable

expectation that the government will not obtain that

information from the third party without a warrant

issued upon probable cause. This does not, however,

accord with the expectations most people have when

transmitting information for a specific purpose. As

such, even sctting aside the serious issues presentcd

by the digital age, many scholars believe the third-

party doctrine is based on a highly questionable

premise.

Most people recognize that “[p]rivacy is not an

all or nothing phenomenon.” Ashdown, The Fourth

Amendment and the “Legitimate Expectation of

Privacy,” 34 Vand. |. Rev. at 13815; Smith, 442 U.S. at

749 (Marshall J., dissenting) (“Privacy is not a

discrete commodity, possesscd absolutely or not at

all. Those who disclose certain facts to a bank or

phone company for a limited business purpose need

not assume that this information will be released to

other persons for other purposes.”). In disclosing

information to a business, health care provider, or

other third party, an individual has a reasonable

expectation that his information will be used for a

limited purpose and will not be disclosed to any other

party without their permission. See, e.g., Wayne R.

La Fave, 1 SEAKCH AND SEIZURF, A TREATISE ON THE

FOURTH AMENDMENT § 2.7(c) (5th ed. 2012); Ferguson

v. City of Charleston, 532 U.S. 67, 78 (2001)

(concluding that hospital patients had a reasonable

expectation of privacy in test results because the

yesults were not disclosed to any other party without

the patients’ permission); see also Kiel Brennan-

Marquez, Fourth Amendment Fiduciaries, 84

Fordham L. Rev. 611, 612 (2014) (arguing that when

information is shared for the sole purpose of

obtaining an indispensable social good, the third

party’s cooperation with law enforcement should be

analyzed as a Fourth Amendment search). — In

particular, it is unreasonable to consider data

somehow “not private” if the information, like CSLI,

is generally exposed only to automated systems

rather than human employees. See Tokson,

Automation and the kourth Amendment, 96 lowa L.

Rev. at 611-27.

Moreover, the idea that the third-party

ductrine applies even in cases where—like here— the

government coerces a third party into disclosing such

information is highly problematic. The doctrine was

originally premised on the idea that individuals

“assumed the risk” that an associate would choose to

talk to the police. See Hoffa v. United States, 385

U.S. 293, 302 (1966). Allowing the police to coerce

third parties into disclosing confidentia! information

threatens to climinate privacy in countless forms of

personal information, and contradicts the reasoning

of Katz—as surely it would have been a Fourth

Amendment “search” if, in Katz, the povernment

ordered the phone company to tap its own wires, even

though the company has the legal right to record

phone conversations in several} situations.'”

As such, scholars and commentators

overwhelmingly consider the third-party doctrine a

perversion of the Katz test that fails to accurately

consider either social norms or actual expectations of

privacy. See, eg., Stephen Henderson, The Timely

Demise of the Fourth Amendment Third Party

Doctrine, 96 Iowa L. Rev. Bull. 39 (2011); Jed

Rubenfeld, The End of Privacy, 61 Stan. lL. Rev. 101,

113-14 (2008); Jack M. Balkin, Essay: The

Constitution in the National Surveillance State, 93

Minn. L.. Rev. 1, 19 (2008); Slobogin, PRIVACY AT RISK

at 151-64; Susan Freiwald, First Principles of

Communications Privacy, 2007 Stan. Tech. L. Rev. 3,

AG—-49 (2007); Susan W. Brenner & Leo L. Clarke,

Fourth Amendment Protection for Shared Privacy

Rights in Stored Transactional Data, 14 J... & Pol’y

911, 242-44 (2006); Deirdre K. Mulligan, Reasonable

Expectations in Electronic Communications: A

Critical Perspective on the Electronic

Communications Privacy Act, 72 Geo. Wash. L. Rev.

1557, 1571 (2004); Sherry Colb, What Is a Search:

Two Conceptual Flaws in Fourth Amendment

Doctrine and Some Hints of a Remedy, 55 Stan. L.

Rev. 119 (2002); Daniel J. Solove, Digital Dossiers

12 See 18 U.S.C. § 2511(2)(a)Qi) (“It shall not be unlawful under

this chapter for . . . an officer, employee, or agent of a provider of

wire or electronic communication service . . . to intercept,

disclose, or use that communication in the normal course of his

employment while engaged in any activity which is a necessary

incident to the rendition of his service or to the protection of the

rights or property of the provider of that service.”); td. §

2511(2)(a)(ii) (providing for telephone company compliance with

law-enforcement requests).

and the Dissipation of Fourth Amendment Privacy, 75

S. Cal. Rev. 1083, 1093-94 (2002); Scott FE. Sundby,

Everyman's Fourth Amendment: Privacy or Mutual

Trust Between Government and Citizen?, 94 Colum.

L. Rev. 1751, 1757-58 (1994); James Tomkovicz,

Beyond Secrecy for Secrecy’s Sake: Toward An

Expanded Vision of the Fourth Amendment Privacy

Province, 36 Hastings L. J. 645 (1985); Arnold H.

foewy, The Fourth Amendment as a Device for

Protecting the Innocent, 81 Mich. L. Rev. 1229, 1254

56 (1983).

B. The Third-Party Doctrine Does

Not Match Expectations of Privacy

in the Digital Age

Scholars have noted that the underlying

assumptions behind the third-party doctrine

concerning expectations of privacy and_ the

consensual disclosure of information become even

more misplaced in the digital age. Citizens have

come to depend on third parties for vital services, and

they lack adequate alternatives for these services.

When engaging in everyday modern life, people do

not expect that exposing personal information to one

party means forgoing a reasonable expectation of

privacy toward all others, including the police. As

discussed above, few people are even aware that they

are disclosing such information and on a vast and

constant scale. Moreover, scholars have recognized

that the artificia) distinctions created as a

compromise to avoid the _ privacy-destroying

consequences of the third-party doctrine no longer

work in the age of data. Chris Conley, Non-Content

Is Not WNon-Sensitives Moving Beyond _ the

Content/non-Content Distinction, 54 Santa Clara L.

Rev. 821, 831 (2014); Steven M. Bellovin et al., it’s

Too Complicated: How the Internet Upends Katz,

Smith, and Electronic Surveillance Law, 30 Harv.

J.L. & Tech. 1 (2016).

In particular, distinctions between

public/private activities and content/non-content

information fail to justify the third-party doctrine

when applied to information sharing and long-term,

aggregated, public surveillance. Andrew D. Selbst,

Contextual Expectations of Privacy, 35 Cardozo L.

Rev. 643, 658 (2013); Stephen EK. Henderson, Beyond

the (Current) Fourth Amendment: Protecting Third-

Party Information, Third Parties, and the Rest of Us

Too, 34 Pepp. L. Rev. 975, 1020-24 (2007). In certain

circumstances, an aggregation of supposedly “non-

content” location information can be as revealing as

“content,” just as public actions can reveal private

expressive acts. Jones, 565 U.S. at 416 (Sotomayor,

J.. concurring). A full embrace of the third-party

doctrine in the digital era would imply that

individuals have no reasonable expectation of privacy

in e-mails stored on third-party servers, electronic

health records, and all third-party information linked

to our smartphones. Katherine J. Strandburg, /iome,

Home on the Web and Other Fourth Amendment

Implications of Technosocial Change, 70 Md. L. Rev.

614, 642 (2011); see also United States v. Warshak,

631 F.3d 266 (6th Cir. 2010) (holding that the Fourth

Amendment protects e-mail content).

Even isolated defenders of the third-party

doctrine concede that justifying it on reasonable

expectation of privacy grounds is “awkward and

unconvincing,” and assert that it is_ better

conceptualized as a consent doctrine. Kerr, The Case

for the Third-Party Doctrine, 107 Mich. L. Rev. at

588. Vut this fallback argument of consent has itself

been challenged as theoretically inadequate and

practically inaceurate. Richard A. Epstein, Privacy

and the Third Hand: Lessons from the Common Law

of Reasonable Expectations, 24 Berkeley Tech. LJ.

1199, 1206 (2009). And as a technological matter, in

the context of CSLI and smart devices, the automated

nature of ubiquitous and involuntary connection

undercuts the consensual nature of the exposure.

The reality is this: There is no principled way

to limit Smith once applied in the digital context. If

Smith applies here, the proponents of warrantless

CSLI cannot foreclose the extension of the third-party

doctrine to authorize the disclosure of the content of

our cyber-lives. The Court need not proceed down

this path.

vs Justifications for the Third-Party

Doctrine Do Not Hold Up in the

Digital Age

The primary defender of the doctrine claims

the rule is required for two reasons: first, to preserve

a privacy/securily balance built into the reasonable

expectation of privacy test; and second, to develop

clear ex ante rules for police to follow. Kerr, The Case

for the Third-Party Doctrine, 107 Mich. L.. Rev. at

584—85. Both justifications fall apart when applied to

the invasive, precise, automatic, and involuntary

data revealed to third parties in the digital age.

First, the technological landscape of the Smith

era has been replaced by a world in which there

exists an abundance of third-party data available to

law enforcement. The digital footprints we leave are

extensive and exposing. If there is a need to

rebalance the risks of privacy and security, the

balance should shift toward limiting unfettered

access to location data and other personal

information. See, e.g., Slobogin, PRIVACY AT Risk at

6—9; Stephen Rushin, The Judicial Response to Mass

Police Surveillance, 2011 U. Til. J.L. Tech. & Pol’y

281, 285 (2011). In a world of big data policing, the

ability to rammage among the available digital clues

empowers law enforcement at the expense of citizens.

Andrew Guthrie Ferguson, THE RISE OF BIG DATA

POLICING: SURVEILLANCE, RACE, AND THE FUTURE OF

1.AW ENFORCEMENT 17-18, 129 (2017).

The second justification for the third-party

doctrine turns on a stated need for ex ante clarity for

law enforcement. Trying to divine exactly which

information is protected in third-party business

records is just too difficult, the argument goes. The

third-party doctrine’s simplistic answer is to assert

that the individual loses all Fourth Amendment

interest in the data shared with another party.

While clear, this sclution is wrong and

unnecessary. The better answer is that hoth the

individual and the third party retain Fourth

Amendment rights in the information produced and

possessed by the individual, and the information

produced and possessed by third parties. In a variety

of circumstances—a renter living in a rented house, a

package handed to a common courier, an e-mail on a

third-party server—the Fourth Amendment

recognizes that both owner and user have

overlapping Fourth Amendment privacy rights. See,

e.g., Georgia v. Randolph, 547 U.S. 103, 114 (2006);

Chapman v. United States, 365 U.S. 610, 616-18

(1961); Stoner v. California, 376 U.S. 482, 489 (1964);

United States v. Jeffers, 342 U.S. 48, 52 (1951); see

also Tokson, Automation and the Fourth Amendment,

96 lowa L. Rev. at 6830-31. The same should be true

for digital information serviced by third parties.

Susan W. Brenner & leo L. Clarke, Fourth

Amendment Protection for Shared Privacy Rights in

Stored Transactional Data, 14 J.L. & Pol’y 211, 245-

65 (2006); Mary I. Coombs, Shared Privacy and the

Fourth Amendment, or the Rights of Relationships, 75

Cahf. L. Rev. 1593, 1593-1600 (1987). In fact, this

duality is even more relevant in the digital age as the

same information might be possessed simultaneously

by the user and the third party. As the Court

recognized in Riley, for example, mformation on a

smart device may be stored locally and also on the

cloud. Riley, 1345S. Ct. at 2491.

Allowing both user and third party to possess

Fourth Amendment rights in this data would not

create a logistical challenge for law vnforcement.

ven in the absence of the third-party doctrine, third-

party service providers faced with government

requests for user data would not need to calculate

their users’ Fourth Amendment rights. Just as in

any other Fourth Amendment context, it is the

yovernment’s responsibility to secure a warrant for

an individual’s personal data, whether stored by

third-party services or otherwise.

So, for example, if the government wants to

access collected data from a “smart” pacemaker to

investigate a crime,'® the question is not whe owns

the digital content or who possesses the personal

data, but what justification the police have for

requesting the information.'* Just like the other

situations involving rental property, hotels, and

couriers with overlapping privacy interests, law

enforcement cannot merely ignore the privacy

interests uf one party by focusing on the other's

ownership. Instead, because of the overlapping

Fourth Amendment interests, police must yet a

warrant. This requirement offers equally clear ex

ante “guidance to law enfurcement through

categorical rules.” See Riley, 134 S. Ct. at 2491.

While not simplistic, applying the traditional

i8 See Cleve RK. Wootson, Jr., A Man Detailed His Escape from a

Burning House. His Pacemaker Told Police a Different Story,

Wash. Post (Feb. 8, 2017).

14 Further, framing the argument about access to cxisting

business records is a bit misleading. Be it CSLI or smart health

data, these sought after digital “records” do not exist in some

electronic filing cabinet of “records.” The vast amount of digital

information pinging from every cell tower and smart home is

only seen by automated, computer collection systems and largely

undifferentiated to the third-party collector. Tokson,

Automation and the Fourth Amendment, 96 lowa L. Rev. at 604.

‘'o abtain specific information about a specific customer in

response to a law enforcement request, the companies must

affirmatively search the relevant datasets. If those datasets

contain personal information (like the aypregated locational

information of an individual) then the exposing, personal nature

of the process becomes obvious. It is only by organizing the

otherwise unanalyzed data that the relevant datasets get

created, It is, thus, inaccurate to frame the issue as mercly a

request for business records from already created business data.

The records—including personalized dala—are created in

response to a law enforcement request, and thus expose

personal information in response to a law enforcement request.

reasonable expectation of privacy test and warrant

requirement has been shown to work well enough

and can be adapted to the digital age of locational

tracking and smart devices.

Revealingly, a warrant requirement has been

the default policy for major technology companies

when it comes to requests for digital content held by

third parties. Amazon, Apple, Dropbox, Facebook,

Google, Lyft, Microsoft, Pinterest, Twitter,

WordPress, and Yahoo among other third parties all

require a lawful warrant to obtain the content of user

data. See Nate Cardozo ct al., Who Has Your Back?:

Protecting Your Data from Government Requests,

Elec. Frontier Found. 6-8, 12 (July 2017). To be

precise, the company policies protect “content,”

nominally tracking the artificial content/non-content

distinction between protected and _ unprotected

communications being held by third parties. See Orin

S. Kerr, Applying the Fourth Amendment to Internet

Communications: A General Approach, 62 Stan. L.

Rev. 1005, 1019-20 (2010). But, in practice, some

companies’ definition of “content” embraces location

information and even shared public content. For

example, the transportation company Lyft requires a

warrant for “prospective cell tracking” (real-time

tracking),‘5 and Uber requires a warrant for GPS

location information.’ ‘Vhird-party services like

1 Law Enforcement Requests, Lyft, https://help.lyft.com/he/en-

us/articles/214218437-Law-Enforcement-Requests (“We — will

reguire a warrant for requests fur content of communications

between Users or for prospective location data.”).

16 Uber Guidelines for Law Enforcement Authorities, Uber,

https://www.uber.com/legaV/data-requests/guidelines-for-law-

enforcement-united-states/en-US/ (“We require ... [a] search

Facebook (which exists to share ideas, photos, and

communications with others) still requires luw

enforcement to obtain a warrant before providing

those shared ideas, photos, and location information

to law enforcement.'? The practice shows that

consumers expect third parties to protect thetr

personal information and that a warrant requirement

for such information can be workable for companies

and law enforcement.’® This final point—that law

enforcement manages to secure necessary data

warrant issued under the procedures described in the Federal

Rules of Criminal Procedure or equivalent state warrant

procedures upon a showing of probable cause is required to

compel our disclosure of certain communications between people

using Uber or GPS location information.”).

'? Information for Law Enforcement Authorities, Facebook,

https:/Awww. facebook.com/safety/groups/|aw/guidelines/, (“A

search warrant issued under the procedures desenbed in the

Federal Rules of Criminal Procedure or equivalent state

warrant procedures upon a showing of probable cause is

required to compel the disclosure of the stored contents of any

account, which may include messages, photos, videos, timeline

posts, and location information.”).

\8 Facebook reported that the company received 14,736 warrant

requests between July and December 2016, and that it provided

sume information 85.32 pereent of the time. Government

Requests Report, Facebook,

https://govtrequests.facebook.com/country/United%, 208tates/20 1

6-H2/. Ober reported that the company received 205 warrant

requests during the same time period, and that it provided some

data 87 percent of the time. Transparency Report, Uber,

https://transparencyreport.uber.com/. In 2015, the company

received 16 search warrants, fully complicd with 12, partially

complied with three, and did not respond to one. Lyft

Information Request Report - 2015, Lyft, https://lyft-

assets.s3.amazonaws.com/helpcenter/Drive%20With® 20Lyft/Lyf

t%2ZUTransparency %20Report%20-% 2020 15%20(1).pdf.

through warrants—demonstrates that a_ better

balance between privacy and security can be struck.

CONCLUSION

The so-called third-party doctrine has been

widely criticized by scholars for decades, and ils

underpinnings continue to erode. Both as a matter of

privacy theory and due to practical concerns

regurding today’s technologies, the foundations no

longer hold. Mechanical application of Smith v.

Maryland to a digital uge will undermine privacy and

amplify mass surveillance in ways that threaten

associational freedom und personal liberty. New

technologies and new expectations of privacy require

a new approach. To ensure that the Fourth

Amendment protects privacy in the future as it has in

the past, this Court should limit Smith to its unique

facts, or otherwise reject the third-party doctrine

outright.

Dated: August 14, 2017

Respectfully submitted,

ANDREW CG. FERGUSON HARRY SANDICK

UDC David A. Clarke Counsel of Record

School of Law KATHRINA SZYMBORSKI

4340 Connecticut Ave. JARED BUSZIN

Washington, 1).C. 20008 Patterson Belknap Webb & Tyler

LLP

1133 Avenue of the Americas

New York, NY 10036

(212) 336-2000

hsandick@pbwt.com

Counsel] for Amici Curiae

APPENDIX A'9

Barbara Babcock

Founder and former Director of the Public

Hefender Service in Washington, D.C.

Crown Professor of Law, Emerita

Stanford Law Schoo!

Jordan M. Blanke

Ernest L. Baskin, Jr. Distinguished Professor of

Computer Information Systems and Law

Stetson School of Business & Economics

Mercer University

Robert M. Bloom

Professor of Law

Boston College Law School

Kiel Brennan-Marquez

Research Fellow, New York University School of Law

Visiting Fellow, Information Society Project, Yale

Law School

dwin J. Butterloss

Professor of Law

Mitchel! Hamline School of Law

Robert Calhoun

Professor of law Emeritus

Golden Gate Law School

Adam Candeub

19 Amici curiae appear in their individual capacities;

institutional affiliations are provided here for identification

purposes only.

Professor of Law

Director, IP, Information, & Communications Law

Program

Michigan State University

Bennett Capers

Stanley A. August Professor of Law

Brooklyn Law School

Visiting Professor at Boston University School of Law

(Fall 2017)

Jenny Carroll

Professor of Law

University of Alabama

Gabrie! J. Chin

Edward L. Barrett Jr. Chair and Martin Luther King

Jr. Professor of Law

UC Davis School of Law

Ralph D. Clifford

Professor of Law

University of Massachusetts Law School

Joshua Fairfield

William Donald Bain Family Professor of law

Washington and Lee University

Andrew Guthrie Ferguson

Professor of l.aw

UDC David A. Clarke Schoo! of Law

James Grimmelmann

Professor of law

Cornell Tech and Cornell Law Schoo!

Susan Freiwald

Associate Dean of Academic Affairs and Professor of

Law

USF Schoo! of Law

Woodrow Hartzog

Professor of Law and Computer Science

Northeastern University

School of Law

College of Computer and Information Science

Janet C. Hocffel

Catherine D. Pierson Professor of Law

Tulane University School of Law

David Jaros

Associate Professor of Law

University of Baltimore School of Law

Margot E. Kaminski

Associate Professor of Law

Colorado Law

Mark A. Lemley

William H. Neukom Professor

Stanford Law School

Dave Levine

Associate Professor

Elon University School of law

Affiliate Scholar, Stanford Law School Center for

Internet and Society

Hichard H. McAdams

Bernard D. Meltzer Professor of Law

University of Chicago Law School

Thomas M. McDonnell

Professor of Law

Elisabeth Haub Schoo! of Law at Pace University

William MecGeveran

Professor of Jaw and Solly Robins Distinguished

Research Fellow

University of Minnesota I.aw School

Colin Miller

Professor and Associate Dean for Faculty

Development

University of South Carolina School of Law

Steven J. Mulroy

Professor of Law

Humphreys School of I.aw, University of Memphis

Connie Davis Nichols

Professor of Law

Baylor Law Schoo]

Kenneth B. Nunn

Professor of Law

University of Florida, Levin College of Law

Paul Ohm

Professor of Law

Georgetown University Law Center

Brian L. Owsley

Assistant Professor of Law

UNT Dallas College of Law

Blake Reid

Associate Clinical Professor

Colorado Law

Neil Richards

Thomas & Kurole Green Prolcssor of Law

Washington University in St. Louis

David Rudovsky

Senior Fellow

Penn Law Schoo!

Jason Schultz.

Professor of Clinical Law

New York University School of Law

Victoria l. Schwartz

Associate Professor of Law

Peppcrdine University School of Law

awinder S$, Sidhu

Of Counsel, Shock, Hardy & Bacon, LLP

Visiting Professor, University of Baltimore School of

Law

Priscilla J. Smith

Clinical Lecturer in Law

Director and Senior Fellow, Program for the Study of

Reproductive Justice

Yale Law School

Randolph N. Stone

Clinical Professor of Law

University of Chicago Law School

Kim Taylor-Thompsun

Professor of Clinica! Law

New York University Schoo! of Law

George C. Thomas III

Rutgers University Board of Governors Professor of

Law

Judge Alexander P. Waugh, Sr. Distinguished

Scholar

Ari Ezra Waldman

Associate Professor of Law

New York Law School

Jonathan Weinberg

Professor of Law

Wayne State University

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.