Editor's note: This is the second in a two-part series. Carpenter v. United States Smith Jones Jones Smith Miller Smith Smith Miller Jones might Olmstead United States |

Analysis

• Privacy v. Anonymity. The court, as do so many, confuses privacy with anonymity. At the heart of CSLI is where in the world a person is located at a given time. To get to that location, the person must travel in public space, and the place itself will be in public, even if the space affords privacy, as a home in a public space affords privacy to those inside (away from the windows, not talking too loudly, etc.). That no one may pay attention to a person traveling from one place to another gives the person anonymity, not privacy, which is not protected by the Fourth Amendment.
• What You Learn From Paying Attention is Not an Invasion of Privacy. If paying attention to where and when a person travels does not invade their privacy, then, certainly, neither does drawing rational conclusions from those movements. The court spends a remarkable amount of time addressing what can be learned about a person through gathering his or her CSLI. None of the conclusions and inferences drawn from CSLI, however, are private. Consider two persons. Person No. 1 is one of the persons who, in 1996, placed bombs in garbage cans at the Atlanta Olympics. He did so in front of thousands of persons, but none of those persons knew, or cared, about him, and so he was not noticed. That was anonymity, not privacy. Contrast him now with anyone, post-9/11, boarding an airplane. None of the TSA staff has information making anyone suspicious of 99 percent of those who board, but particular attention is paid to all those who do. What has changed since 9/11 is not, then, the growth of probable cause by law enforcement, but the world in which airplane flight could be used to advance a terrorist plot.

• The World Has Changed, Not Just CSLI. The previous point touches on another, important one: the Court simply has ignored how the world has changed. If CSLI traces when and where a person goes in an overcrowded, urban setting, it is simply doing the work that many, many years ago the Old West sheriff did when a new family came to town. The sheriff could ask the banker, the bartender, and others who were in town on a regular basis whether any strangers had come through, and would get an answer that, if not as precise as CSLI, was at least substantiated by the witnesses' memories, with whose strength and precision the sheriff would be familiar. Now we live in a world of so many people and so much travel that the cost to law enforcement to have police officers “on the beat” is too great for most towns, counties, states and the federal government to bear. That fact, however, creates anonymity, not privacy, and anonymity is not protected by the Fourth Amendment. By ignoring how everything in the modern world works save for cellphones and carriers, the court can characterize them as scary weapons, like something from the future brought back to the present in a science fiction story. This characterization, however, does nothing to help us understand how cellphones and carriers fit into the protections afforded by the Fourth Amendment.
• How Should the Search Warrant The Court Wants Be Served? The court's pronouncement that the government in the instant matter needed a search warrant and not an order under the Stored Communications Act is based upon the court's determination that probable cause, the quantum of proof required under the Fourth Amendment, was required here, while reasonable suspicion, the quantum of proof required under the SCA, was insufficient to justify the seizure of the CSLI. What the court ignores is how such a search warrant would be served.

Conclusion

Carpenter Leonard Deutchman recently retired from his position as vice president, Legal for KLDiscovery. Before joining KLDiscovery, he was a chief assistant district attorney at the Philadelphia District Attorney's Office, where he founded the Cyber Crime Unit and conducted and oversaw hundreds of long-term investigations involving cybercrime, fraud, drug trafficking and other offenses.