Does Positive Law Speak to the Threshold Fourth Amendment Issue in Carpenter?

In Carpenter v. United States, the Supreme Court will soon consider whether there is a reasonable expectation of privacy in “cell-phone records revealing the location and movements of a cell-phone user over the course of 127 days.” Some courts have found guidance in the Wireless Communication and Public Safety Act of 1999, which provides statutory privacy protections for customers’ call location records. Because this issue is one of the less commented-on aspects of the case, I’d like to explore and draw attention to it.

Supreme Court precedent is not entirely clear on how non-constitutional privacy protections should inform the scope of Fourth Amendment rights, and commentators have debated the issue. Under the “positive law model” proposed by Will Baude and James Stern, a Fourth Amendment “search” or “seizure” generally occurs if (and only if) the government takes an action that would be illegal if performed by a similarly situated private party. I have argued against that approach but suggested a related idea that I call the “positive law floor,” which holds that when nationwide privacy laws guard against intrusions by private parties, similar intrusions by the government should be presumptively unreasonable. Finally, Orin Kerr has argued against any doctrinal link between statutory privacy law and Fourth Amendment protection, whether as a ceiling or a floor.

This debate is particularly relevant to Carpenter because of the Wireless Communication and Public Safety Act of 1999 (WCPSA), which Susan Freiwald recently brought to my attention. Congress has provided that “[e]very telecommunications carrier has a duty to protect the confidentiality of proprietary information of, and relating to, … customers.” 47 U.S.C. § 222(a); § 222(c). And the WCPSA defined “customer proprietary network information” to include “information that relates to the … location … of use of a telecommunications service subscribed to by any customer of a telecommunications carrier, and that is made available to the carrier by the customer solely by virtue of the carrier-customer relationship.” § 222(h). The WCPSA also established a special “express” consent requirement specifically for disclosure of customer location information. § 222(f).

There are certain statutory exceptions to these protections, see § 222(c) & (d), but the only one that seems applicable in Carpenter is a general reference to disclosure “as required by law.” In several cases, the government has argued that that exception allows for disclosure orders like the one in Carpenter. See 2012 WL 604860 at 29-30 (discussing 18 U.S.C. § 2703). But that kind of government-only exception is precisely what triggers the positive law model or floor: the point of those approaches is to provide a constitutional check on the government’s access to information that is denied to similarly situated private parties.

Further, the WCPSA is linked to a cause of action for individuals. See 47 U.S.C. § 207. That provision is important because government exceptionalism may not be enough to secure protection under the positive law model or floor: in addition to violating laws applicable to similarly situated private parties, the government may have to violate a personal legal right of the defendant himself. By treating locational information as a customer’s “proprietary information” and affording customers a cause of action, Congress seems to have signaled that the defendant did indeed have a personal right to locational privacy.

This line of reasoning has come up before. In 2010, for instance, Judge Stephen Smith wrote an opinion that advanced a version of the argument outlined above; but that view was rejected on appeal in 2013, as critically discussed in this HLR comment. In that case, the United States argued in part (see 2012 WL 604860 at 30, also cited above) that treating the WCPSA as legislative evidence of reasonable privacy expectations would contradict Smith v. Maryland:

47 U.S.C. § 222(c)(1) protects not only cell phone location information; it protects all “individually identifiable customer propriety network information,” which includes dialed phone numbers. Thus, the Magistrate Judge Opinion’s reasoning suggests that even use of a traditional telephone pen register could violate the Fourth Amendment, as dialed telephone numbers are also protected by § 222. This result is inconsistent with Smith v. Maryland, and it should be rejected.

Readers who think Smith was wrong may not be troubled by that argument. In any event, a statutory exception applies to disclosures “to protect users … from … abusive, or unlawful use of … such services,” § 222(d), and the pen register in Smith arguably fit this exception, since it recorded threatening calls. So it’s not clear that reliance on the WCPSA in Carpenter would be inconsistent with the result in Smith.

But perhaps other provisions of positive law aid the government. In addition to authorizing disclosure orders under Section 2703, the Stored Communications Act (SCA) separately provides that covered providers “may divulge” non-content subscriber information “to any person other than a governmental entity.” 18 USC § 2702(c). However, that provision can be read as an “exception[ ]” only to liability under the SCA, rather than an all-encompassing permission to disclose customer information. And the WCPSA could be viewed as more specific in speaking directly to locational information.

Now, even if arguments from the positive law were accepted, they would not determine whether the government’s disclosure order under Section 2703(d) satisfied the Fourth Amendment’s bar on “unreasonable” searches. But it would be a major advance to set aside the third-party doctrine as applied to cell-site locational information. After doing so, the Court itself could conclusively address the issue of reasonableness, or it could invite further engagement by lower courts and the political branches. And the Court would also have opened the door to similar uses of the positive law in other contexts, such as healthcare or banking records.

The WCPSA argument may not ultimately prevail, and it may encounter challenges other than the ones that I (and the United States in prior cases) flagged above. But because the issue seems to warrant greater attention, I wanted to draw attention to it here.