Privacy on the Line Continued from previous page tions that allow a mobile telephone user to affirmatively broadcast her location, I assume that most people are – or will soon be – aware of that fact.”33 Given that human communication is now conducted in technologically complex ways that involve a variety of third party service providers, it may well be necessary, as Justice Sotomayor suggested in Jones, “to reconsider the premise than an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”34
in ascertaining what the scope of Fourth Amendment protection was. In determining whether a “legitimate expectation of privacy” existed in such cases, a normative inquiry would be proper.35
Rather than asking a trial court to reexamine the doctrine, the advocate may choose to invoke the ample precedent supporting application of one of its exceptions. First, the Supreme Court has recognized that the public’s “awareness” may not always be the proper litmus test for whether there is a legitimate expectation of privacy. Katz, after all, did not root the right to privacy in what the public knew the contours of the privacy right to be, but rather on what they expected it to be. In Smith, the seminal third party disclosure decision, the Supreme Court cautioned that when subjective expectations of privacy have been conditioned to expect mass surveillance, the scope of the privacy right should be determined by a normative inquiry, i.e. by what the privacy right should be:
Another powerful exception to the thirdparty disclosure doctrine is the so-called “content exception,” namely, that the content of our communication remains private, even if handed over to a third party for delivery. Mail is voluntarily disclosed to the Post Office, yet as the Supreme Court established in Ex parte Jackson,37 sealed envelopes are entitled to Fourth Amendment protection. In United States v. Warshak, the Sixth Circuit applied the “content exception” to electronic communications.38 There, the Court held that the government could not compel production of the contents of a subscriber’s emails without first obtaining a warrant based on probable cause, even where the emails were delivered through or maintained by a commercial internet service provider.
For example, if the government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry, individuals thereafter might not in fact entertain any actual expectation of privacy regarding their homes, papers, and effects. In such circumstances, where an individual’s subjective expectations had been “conditioned” by influences alien to well-recognized Fourth Amendment freedoms, those subjective expectations obviously could play no meaningful role
Revealing “a picture of [a person’s] life so intimate that he expects no one except perhaps his spouse to have it,”39cell site location data can be considered the equivalent to protected “content” – the sealed envelopes and the private emails protected in Ex Parte Jackson and Warshak. Because it aggregates the totality of an individual’s movements over time, cell site location evidence contains far more information than the dialed phone numbers at issue in Smith. It delivers a host of personal data and
32
What we expect our rights to be with respect to location data may thus be better measured by federal and state legislation relating to the scope of privacy protection, rather than what the public understands about cell site technology and service provider’s storage policies.36
33
Ornstein Opinion, 736 F. Supp. 2d at 592.
34
Jones, 132 S. Ct. at 957.
35
Smith, 442 U.S. at 741, n.5.
36
Orenstein Opinion, 736 F. Supp. 2d at 588-89.
37
Ex parte Jackson, 96 U.S. 727, 732-33 (1877).
38 United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010).
39
Orenstein Opinion, 736 F. Supp. 2d at 584.
Atticus | Volume 26 Number 2 | Summer 2014 | New York State Association of Criminal Defense Lawyers