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Balancing Fourth Amendment Expectations in the Electronic Era
As rapid technological changes in the 21st century continue to expand the types and volume of private electronic information, the Fourth Amendment's privacy protections are evolving. Originally, “Fourth Amendment jurisprudence was tied to common-law trespass” and provided protections against searches of property. See, United States v. Jones, 565 U.S. 400, 405 (2012). For the past 50 years, however, modern Fourth Amendment jurisprudence has focused on protecting “people, not places.” The critical question in Fourth Amendment cases is whether a person has a “reasonable expectation of privacy in the information or event.” Katz v. United States, 389 U.S. 347, 360 (1967).
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.
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