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U.S. Constitution Title: When Privacy Prevails: ACLU Lawyer Dishes on SCOTUS' Carpenter Decision Nathan Wessler, who argued 'Carpenter' before the SCOTUS, said the decision made way for courts to address protections for "highly sensitive" data held by third-party companies. The Supreme Court’s 5-4 decision in Carpenter v. United States marks a significant gain for privacy advocates as well as a monumental shift in how both the Fourth Amendment and the “third-party” doctrine are interpreted. Among those who made the decision possible is Nathan Wessler, the American Civil Liberties Union attorney who argued on behalf of Timothy Carpenter before the court. Legaltech News recently caught up with Wessler to get his thoughts on the case’s significance, the justices’ views on privacy, and what privacy questions remain to be answered. Legaltech News: What questions remain unanswered in this decision? Nathan Wessler: This decision is groundbreaking for a couple reasons. One is for what it says about location privacy and the very intense privacy interest people have in their digitally collected location information that can chart an account of what they do and where they go and who they spend time with any day. And second is what this opinion says about the status of the third-party doctrine in the digital age. The Carpenter decision holds that the police need a warrant to get someone’s historical cellphone location data. But in doing so, the court has created space for future cases to address what protections are necessary for all the other kinds of highly sensitive digital age data that’s held by third-party companies. That’s everything from the content of our emails to information generated by GPS on our phones, whether it’s medical information or a record of everything we read on newspaper apps or fertility tracking data or so much more. Information about the state of our bodies being collected by a smartwatch or another wearable medical device, information about the interior of our home from internet of things devices, like a smart thermostat that knows when you’re home and maybe what room you’re in. The Carpenter decision doesn’t directly answer the question of when a warrant is going to be required for which of those other kinds of data, but it is the first time in four decades the Supreme Court has revisited the third-party doctrine, and the court did so in a way that creates real momentum toward protecting a wider array of highly sensitive digital age data going forward, and that is extraordinarily important. What does this mean for the average American in terms of their privacy rights? Most people probably aren’t going to notice immediate changes, because this ruling is about constraining law enforcement and making sure that law enforcement isn’t rummaging around in our most sensitive personal and revealing data without judicial oversight. But I do think it will enable the development of digital technologies by removing one of the key privacy concerns that both individuals and companies had. In the last few years, certainly after the document disclosures by Edward Snowden, the public debate in this country has really changed on questions of digital privacy. There is a real understanding by people that these questions are important, but also by companies that there is a real market for privacy that if they can’t assure their customers that they are able to secure the data and be able to protect it against unjustified intrusion—from hackers, from foreign governments, and from the U.S. government—then those companies are going to have a problem. So I do think [the Carpenter] decision is going to make a difference there, because it puts those companies on much firmer ground to have policies that say, “We have all the sensitive data. We can turn it over to law enforcement when necessary, but we will only do it pursuant to a search warrant based on probable cause.” What does it say about each justice’s view on the Fourth Amendment and their respective relationships with technology? The majority opinion is the latest in a series of opinions that strongly recognizes that the Fourth Amendment has to be interpreted in ways that keep up with developments in technology. So the chief justice’s opinion in this case looks a little bit like his opinion in Riley [v. California ], the case about searching the content of cellphones from a couple of years ago. In both decisions, the court and Justice [John] Roberts had recognized we can’t just rotely extend pre-digital judicial precedents to digital age surveillance and search techniques. The language on that theme in the Carpenter decision just couldn’t be stronger. And I think in Justice [Samuel] Alito’s dissent, we can see some real anxiety and disagreement about how to make those changes without throwing out entire sets of Fourth Amendment doctrine. He would stick with the old rules and is apparently willing to accept the consequences for privacy. Justice [Neil] Gorsuch’s opinion is really interesting, too—it’s styled as a dissent, but really it’s a dissent in name only. He goes into great depth into his view of why the government investing in techniques raises concerns and how he thinks we could appropriately address those, not through privacy principles but through more of a property-based approach. He doesn’t totally flesh out how that will look in future cases, but he provides a lot of guidance going forward that I think we will see a great number of legal challenges from defense attorneys and others that include sections that take Justice Gorsuch up on his invitation to raise that theory as well. Hopefully we will find some clarity in the future from the lower courts as they start to address that question. What do you find the most significant about the ruling? Is there anything you wish would have gone differently? Frankly, no. This was the decision that we were hoping for from the court. We knew that the court wasn’t going to answer every question that lingers out there about the extent of the digital doctrine in the digital age. But what the court did was to answer the question in front of it and provide very firm guidance to the public and the police that when they want to access this treasure trove of highly revealing location information, the police need to get a warrant. That’s in some ways a sea change in the government’s understanding of its own power and an important and really groundbreaking step toward protecting Americans’ privacy rights. Poster Comment: REPEATING FOR EMPHASIS: Among those who made the decision possible is Nathan Wessler, the American Civil Liberties Union attorney who argued on behalf of Timothy Carpenter before the court. Post Comment Private Reply Ignore Thread |
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