A DARKENING HORIZON?
By Vania Mia Chaker, Esq.
A Darkening Horizon?:
From “Spying Smartphones” to the Shadows of “Sinister iClouds” – Does the Third Party Doctrine Constitutionally Allow the Government Access to Cloud-Based Data in the Wake of Carpenter v. United States?
From “Spying Smartphones” to the Shadows of “Sinister iClouds” – Does the Third Party Doctrine Constitutionally Allow the Government Access to Cloud-Based Data in the Wake of Carpenter v. United States?
See www.VaniaChaker.org, www.VaniaChakerAttorney.com, www.VaniaChaker.com
ABSTRACT OF WORKING PAPER
The University of Florida Levin College of Law published my law review article, “Your Spying Smartphone: Individual Privacy Is Narrowly Strengthened in Carpenter v. United States, the U.S. Supreme Court’s Most Recent Fourth Amendment Ruling” as the featured Article. See 22 J. Tech. L. & Pol’y 1.
After its publication, the American Bar Association recently cited my Article. See ABA Privacy and Data Security Practice Section, “The Third-Party Doctrine in the Wake of a “Seismic Shift” – The Need for Data Privacy Legislation to Keep Pace with Technology,” Steven J. Arango (June 13, 2019), https://www.americanbar.org/groups/litigation/committees/privacy-data-security/practice/2019/third-party-doctrine-wake-of-seismic-shift/. The ABA discussed my Article in context of examining privacy issues related to cloud computing:
“Since 9/11, the government has received “greater investigative latitude,” but to extend this ability to warrantless searches of cloud services is unwise. Vania Mia Chaker, “Your Spying Smartphone: Individual Privacy Is Narrowly Strengthened in Carpenter v. United States, the U.S. Supreme Court’s Most Recent Fourth Amendment Ruling,” 22 J. Tech. L. & Pol’y 1, 12–13 (2018). Although it is my belief that Carpenter protects cloud data from warrantless searches, this area is still “ripe for future Supreme Court review. Orin S. Kerr.”
Like Prof. Kerr, I believe that the application of the third-party doctrine to cloud computing is one that is ripe for judicial review by the U.S. Supreme Court. As I write in my Article, “The significant issues expressed in Jones, Riley, and Carpenter make it foreseeable that similar Fourth Amendment challenges are far from over.[1] Cloud computing, for example, seems like another perfect “domain” for improper law enforcement investigation and surveillance that may later result in judicial review[.][2]” Your Spying Smartphone, 22 J. Tech. L. & Pol’y at 19-20.
This prediction is particularly true given the nature of cloud computing and its value as an investigative tool for law enforcement. “From the government’s point of view, the potential benefits of such digital investigations are myriad and deliciously tempting. With the advent of cloud computing, a person’s entire digital life can be stored in cyberspace. Since files are already uploaded and stored on third-party servers, the government has far easier and likely greater access to an individual’s digital information than it would with a traditional search of physical items in a home.[3]
More importantly, the government can also seek to bypass the warrant requirement and obtain the digital files with a mere subpoena, arguing that the individual had himself turned over the information to a third party.[4] A government agent would certainly welcome the ability to virtually access a target’s most personal information in cyberspace, conveniently from the comfort of a well-lit, air-conditioned office—perhaps while sipping a cup of coffee.[5] No more cramped late-night stake outs or last minute surveillance runs.[6]” Id. at 20.
In my opinion, legal questions regarding the recent judicial narrowing of the third-party doctrine and technological advances are particularly ripe for judicial review against the shifting judicial backdrop of Carpenter v. United States. The use of the third-party doctrine in the area of cloud computing is likely to be an area to next fall under judicial scrutiny.
Citations:
[1]. See USA PATRIOT ACT; Carpenter, 138 S. Ct. at 2217–19; Riley v. California, 134 S. Ct. 2473, 2493 (2014); United States v. Jones, 132 S. Ct. 945, 955–57, 963–64 (2012); Caballes, 543 U.S. at 405; Kyllo, 533 U.S. at 27.
[2]. Soghoian, supra note 44, at 387.
[3]. Here is one explanation of why this is: “So in this digital age, police often do not need to show probable cause of a crime when they want to find out details about your life that they used to find in your home. Instead, they can get your private files from corporations that store your records on their computers. And instead of a search warrant, the police might just need a subpoena—which is ‘trivially easy to issue,’ says Bankston of the Center for Democracy and Technology. Law enforcement doesn’t need a judge’s approval to obtain subpoenas—prosecutors can sign them on their own, as can authorized employees at federal and state agencies. And law enforcement agents don’t need evidence that there’s likely a crime. They need only to be able to show that the records they want are relevant to an investigation.” Daniel Zwerdling, All Things Considered: Your Digital Trail: Does The Fourth Amendment Protect Us?, NPR (Oct. 2, 2013, 1:00 PM), https://www.npr.org/ sections/alltechconsidered/2013/10/02/228134269/your-digital-trail-does-the-fourth-amendment -protect-us.
[4]. Id.
[5]. See id.; Soghoian, supra note 44, at 386.
[6]. See Carpenter, 138 S. Ct. at 2217.
ABSTRACT OF WORKING PAPER
The University of Florida Levin College of Law published my law review article, “Your Spying Smartphone: Individual Privacy Is Narrowly Strengthened in Carpenter v. United States, the U.S. Supreme Court’s Most Recent Fourth Amendment Ruling” as the featured Article. See 22 J. Tech. L. & Pol’y 1.
After its publication, the American Bar Association recently cited my Article. See ABA Privacy and Data Security Practice Section, “The Third-Party Doctrine in the Wake of a “Seismic Shift” – The Need for Data Privacy Legislation to Keep Pace with Technology,” Steven J. Arango (June 13, 2019), https://www.americanbar.org/groups/litigation/committees/privacy-data-security/practice/2019/third-party-doctrine-wake-of-seismic-shift/. The ABA discussed my Article in context of examining privacy issues related to cloud computing:
“Since 9/11, the government has received “greater investigative latitude,” but to extend this ability to warrantless searches of cloud services is unwise. Vania Mia Chaker, “Your Spying Smartphone: Individual Privacy Is Narrowly Strengthened in Carpenter v. United States, the U.S. Supreme Court’s Most Recent Fourth Amendment Ruling,” 22 J. Tech. L. & Pol’y 1, 12–13 (2018). Although it is my belief that Carpenter protects cloud data from warrantless searches, this area is still “ripe for future Supreme Court review. Orin S. Kerr.”
Like Prof. Kerr, I believe that the application of the third-party doctrine to cloud computing is one that is ripe for judicial review by the U.S. Supreme Court. As I write in my Article, “The significant issues expressed in Jones, Riley, and Carpenter make it foreseeable that similar Fourth Amendment challenges are far from over.[1] Cloud computing, for example, seems like another perfect “domain” for improper law enforcement investigation and surveillance that may later result in judicial review[.][2]” Your Spying Smartphone, 22 J. Tech. L. & Pol’y at 19-20.
This prediction is particularly true given the nature of cloud computing and its value as an investigative tool for law enforcement. “From the government’s point of view, the potential benefits of such digital investigations are myriad and deliciously tempting. With the advent of cloud computing, a person’s entire digital life can be stored in cyberspace. Since files are already uploaded and stored on third-party servers, the government has far easier and likely greater access to an individual’s digital information than it would with a traditional search of physical items in a home.[3]
More importantly, the government can also seek to bypass the warrant requirement and obtain the digital files with a mere subpoena, arguing that the individual had himself turned over the information to a third party.[4] A government agent would certainly welcome the ability to virtually access a target’s most personal information in cyberspace, conveniently from the comfort of a well-lit, air-conditioned office—perhaps while sipping a cup of coffee.[5] No more cramped late-night stake outs or last minute surveillance runs.[6]” Id. at 20.
In my opinion, legal questions regarding the recent judicial narrowing of the third-party doctrine and technological advances are particularly ripe for judicial review against the shifting judicial backdrop of Carpenter v. United States. The use of the third-party doctrine in the area of cloud computing is likely to be an area to next fall under judicial scrutiny.
Citations:
[1]. See USA PATRIOT ACT; Carpenter, 138 S. Ct. at 2217–19; Riley v. California, 134 S. Ct. 2473, 2493 (2014); United States v. Jones, 132 S. Ct. 945, 955–57, 963–64 (2012); Caballes, 543 U.S. at 405; Kyllo, 533 U.S. at 27.
[2]. Soghoian, supra note 44, at 387.
[3]. Here is one explanation of why this is: “So in this digital age, police often do not need to show probable cause of a crime when they want to find out details about your life that they used to find in your home. Instead, they can get your private files from corporations that store your records on their computers. And instead of a search warrant, the police might just need a subpoena—which is ‘trivially easy to issue,’ says Bankston of the Center for Democracy and Technology. Law enforcement doesn’t need a judge’s approval to obtain subpoenas—prosecutors can sign them on their own, as can authorized employees at federal and state agencies. And law enforcement agents don’t need evidence that there’s likely a crime. They need only to be able to show that the records they want are relevant to an investigation.” Daniel Zwerdling, All Things Considered: Your Digital Trail: Does The Fourth Amendment Protect Us?, NPR (Oct. 2, 2013, 1:00 PM), https://www.npr.org/ sections/alltechconsidered/2013/10/02/228134269/your-digital-trail-does-the-fourth-amendment -protect-us.
[4]. Id.
[5]. See id.; Soghoian, supra note 44, at 386.
[6]. See Carpenter, 138 S. Ct. at 2217.
