The Future of Carpenter: Kavanaugh’s Privacy Views May Help the Government, But Hinder Individual Privacy Protections, Including Those Accused of Crimes

The Carpenter decision not only represents a victory for everyday citizens’ privacy interests in the mobile age. It may also benefit criminal defendants, who will now have a heightened protection from the government’s ability to obtain CSLI and potentially other types of geolocation information than under the less onerous standard of “reasonable grounds” for believing that the records are “relevant and material to an ongoing criminal investigation.” The Carpenter majority opinion is expressly not limited to CSLI; rather, it is about information that can locate people generally. This suggests potential application of its holding to other collections of historical geolocation information, such as GPS information collected by smart phone apps, GPS information collected by companies that provide fitness trackers, and so on.

In the short time since the Carpenter decision, Justice Kennedy retired and DC Circuit Judge Brett Kavanaugh was nominated to replace him. Judge Kavanaugh appears to be aligned with Justice Kennedy, who dissented in Carpenter on the basis that cell site records are no different from the many other types of business records that the government has a lawful right to obtain without a warrant. Thus, if Judge Kavanaugh’s past opinions are any indication of how he would rule as a Supreme Court Justice, the ruling in Carpenter is unlikely to be expanded to protect future searches using advanced technology—for instance, those conducted through police drone surveillance or facial recognition software—as he has sided with the government when it comes to access to personal data in the absence of a physical intrusion.

For example, in another Fourth Amendment case, United States v. Jones, 565 US 400 (2012), the Supreme Court held that the government’s attachment of a GPS device to the defendant’s vehicle and its use of that device to monitor the vehicle’s movements for approximately four weeks constituted a search under the Fourth Amendment requiring a warrant. Before the case reached the Supreme Court, the DC Circuit had also held that the government’s actions had violated Jones’ reasonable expectation of privacy because location data, when collected in great enough quantity (the so-called “aggregation approach”) reveals more than just location. Judge Kavanaugh wrote a dissent in which he pushed back on the idea that the accumulation of vast amounts of data collected by the GPS device was at the core of the privacy invasion. Instead, he argued that there had been a violation of the defendant’s Fourth Amendment property rights by the installation of the GPS device on the defendant’s vehicle. This view of the Fourth Amendment, revolving around property rights, may not be well-suited for the age of “big data” where all sorts of information can be learned about an individual without any physical intrusion.

In another unusual move, Judge Kavanaugh attached his own separate statement to the full DC Circuit’s 2015 per curiam order denying an emergency petition by plaintiff Larry Klayman for a rehearing en banc in his challenge against the National Security Agency for its bulk collection of phone and Internet metadata. There, Judge Kavanaugh argued that Fourth Amendment protections could be overcome by the so-called special needs doctrine, which allows for warrantless searches in certain limited circumstances, such as national security interests. “The government’s program for bulk collection of telephony metadata serves a critically important special need—preventing terrorist attacks on the United States,” he wrote. “[T]hat critical national security need outweighs the impact on privacy occasioned by this program.” His statement indicates that Kavanaugh may side with the government in future Fourth Amendment privacy disputes that come before the Supreme Court.

In addition to everyday citizens, the nomination of Judge Kavanaugh to the High Court may also impact the privacy interests of individuals accused of crimes in cases where the government attempts to procure and use geolocation data to support charges. As discussed, Judge Kavanaugh appears to generally favor the government’s collection of GPS data without a warrant. This could be problematic for individuals under investigation whose location could be easily tracked and provided to the prosecutor without the protections of a warrant requiring probable cause. But, Judge Kavanaugh’s views on privacy are not all adverse to criminal defendants. For example, Kavanaugh evinced the position that property intrusions, such as the installation of a GPS device on one’s vehicle, would trigger Fourth Amendment protections. Therefore, the outcome may likely depend on the particular facts of the case and the precise technology at issue.

In short, Judge Kavanaugh is unlikely to advance privacy interests based on the “big data” theory as addressed in Carpenter, but under limited circumstances, is more likely to consider a property intrusion as a violation of the Fourth Amendment.

Arent Fox is continuing to monitor developments in this area. For additional information on Carpenter, please see our earlier alert here. We, along with much of America, are keen to see how the Supreme Court shapes as a new Justice is considered and confirmed.