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The Journal Gazette

Tuesday, November 28, 2017 1:00 am

Precedent on privacy now outdated in 21st century

Stephen H. Sachs

Stephen H. Sachs was Maryland attorney general from 1979 to 1987. He wrote this for the Washington Post.

The Supreme Court will hear arguments Wednesday in Carpenter v. United States, testing the scope of the Fourth Amendment's right to privacy in the digital age. The government seeks to uphold Timothy Carpenter's conviction and will rely on the court's 1979 decision in Smith v. Maryland, a case I know well.

I argued and won Smith when I was Maryland's attorney general. I believe it was correctly decided. But I also believe it has long since outlived its suitability as precedent.

Smith began as a run-of-the-mill purse snatching. Unsatisfied with the just-purloined purse, the defendant stalked the victim with threatening and obscene telephone calls. The telephone company – at police request, but without a judicial warrant based on probable cause – attached a “pen register” at its central office that recorded numbers dialed from Smith's home. Within three days, the device revealed a call to the victim that led to additional incriminating evidence and Smith's conviction.

The court ruled that the warrantless use of the pen register didn't constitute a search within the meaning of the Fourth Amendment. It held that Smith had no “legitimate expectation of privacy” in the dialed numbers he “voluntarily conveyed” to a third party, the phone company. The court reasoned the defendant should have known the phone company maintained such records. He therefore assumed the risk that the phone company could do with the records what it wished.

The facts in Carpenter are markedly different – and so is the technology. The defendant was convicted of leading a gang of robbers. The prosecution produced cellphone-tower data that tracked the whereabouts of Carpenter's cellphone for more than four months and placed him at or near the sites of a string of armed robberies. The police acquired the data from Carpenter's wireless carriers without a warrant.

A majority of the U.S. Court of Appeals for the 6th Circuit held that the phone-based logic of Smith was also applicable to cell-tower communications and affirmed Carpenter's convictions. Carpenter had voluntarily conveyed data revealing his location to wireless carriers – the third-party operators of the cell towers. He should have known the wireless carriers were free to track his locations and furnish the information to the police.

This is taking the Smith precedent way too far, in a vastly different technological age. No one involved in the case could foresee the digital revolution that was to come. That new world is defined by the rapid increase in sophisticated – and invasive – technology. It is also defined by a relentless and pervasive assault on privacy.

In such a world, the very notion of a “legitimate expectation of privacy” seems antique.

There is evidence the courts are catching on. Most predictive, perhaps, are the words of Justice Sonia Sotomayor, concurring in a 2012 case holding that the clandestine and warrantless attachment of a GPS tracking device to a defendant's car was an unconstitutional search. Sotomayor suggested that “the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties” is “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

Sotomayor is right. The Supreme Court should develop a modern Fourth Amendment doctrine. Such a test would recognize the legitimate claims of law enforcement but set objective boundaries – such as the duration of an intrusion or the nature of the data seized – that constrain those claims. The Carpenter case is the court's opportunity to do so.

The world has changed profoundly since I argued Smith v. Maryland. And as Oliver Wendell Holmes Jr. taught us long ago: “The life of the law has not been logic; it has been experience.”

Stephen H. Sachs was Maryland attorney general from 1979 to 1987. He wrote this for the Washington Post.