It’s amazing what’s controversial these days.

One would think that something as intimate as a complete record of a person’s movements over the past five years would never be available to law enforcement without a warrant. Such complete on-demand surveillance seems entirely inconsistent with life in a free society. Yet four Supreme Court Justices suggested that just such data—available from cell phone providers—can be obtained by the government without a warrant—and does not even constitute a “search.”   I am talking, of course, about the Supreme Court’s ruling last week inCarpenter v. United States 585 U.S. ____ (2018). 

In Carpenter v. United States—a narrow 5-4 victory for freedom— the Supremes held that government agents obtaining cell phone company records of a person’s movements does, indeed, constitute a “search” requiring a warrant. The Supreme Court reasoned that the time-stamped data available from cell companies provides an intimate window into a person’s life, revealing not only his particular movements on any particular date and time, but through them his “familial, political, professional, religious, and sexual associations.”  The majority was also deeply concerned with the specter of limitless police surveillance—“[w]hoever the suspect turns out to be, he has effectively been tailed every moment of every day for five years, and the police may—in the Government’s view—call upon the results of that surveillance without regard to the constraints of the Fourth Amendment.”  What a horrifying thought.

While we all have reason to be grateful that a years-long record of our individual movements cannot be obtained by the government out of any mere “official curiosity,” the idea that data made available to cellular phone carriers might not be wholly private is an interesting one and worthy of exploration on TCPAland.  After all, if capturing data leaving a phone is not strictly private, why does calling a phone work an invasion of privacy? If anything, surreptitiously capturing data—such as a record of calls being made—seems far more invasive of privacy than merely dialing that same handset’s phone number. And this, in turn, has broad applications on standing principles under the TCPA—if a phone call does not invade privacy then what harm, exactly, does an unwanted call impose?

Carpenter walks through the Supreme Court’s past history of addressing two lines of applicable cases. The first deals with the limits of when a person may “reasonably” expect privacy. The second line deals with the constructive waiver of privacy that takes place when records are shared with a third party. Both have application to the TCPA, as shown below.

The “reasonable expectation of privacy” test is relatively simple. It holds that a person lacks a protected privacy interest in matters that take place in public. Hence, as discussed inCarpenter, limited police surveillance of a vehicle’s movement, for instance, has always been permitted on the idea that a vehicle moving down a public thoroughfare is visible to anyone who cares to look. See Carpenter at *7 discussing United States v. Knotts, 460 U.S. 276, 281. So the driver of the vehicle cannot assert a privacy interest in the information obtained.

While the “reasonable expectation of privacy” test pre-dates Carpenter by decades, the Supreme Court’s re-affirmation of the test should be a reminder to all of the simple truth that what takes place is public is never, strictly speaking, private. Hence, a phone call received on a busy sidewalk during a stroll down a public beach cannot—it seems—invade privacy in any actionable sense. Something to keep in mind when challenging standing underSpokeo or opposing the woeful idea that all class members suffered “identical” harm for purposes of commonality under Rule 23.

The second line of cases addressed in Carpenter is equally interesting—that dealing with the waiver of privacy imposed on records that are shared with third-parties. In Carpenter, the Government’s best argument was that cell phone users “voluntarily” share their location data with cellular phone companies that use the data to provide better coverage. Since the data was provided voluntarily to a third party it is not private under well-tread Supreme Court precedent. See United States v. Miller 425 U.S. 435 (1976)(“the Fourth Amendment does not prohibit the obtaining of information revealed to a third party.”) Then again, the idea that cell phone users “voluntarily” provide their location data to carriers is, at best, a fiction. Folks using cellular phones are largely unaware that their cellular providers are tracking their every movement in orderly single-spaced columns of location data. Those few that are aware of the data sharing capabilities of their phones continue using the phone despite that reality and not with the express intention of sharing that data with the carrier.

Nonetheless, the legal fiction of data voluntarily “shared” with telephone service providers has firm roots in Supreme Court precedent. In Smith v. Maryland 442 U.S. 735 (1979)the U.S. Supreme Court had held that obtaining a record of phone numbers dialed by a suspect was not a “search” requiring a warrant because the phone numbers were provided to a third party—the telephone company—and so the consumer could not have expected privacy respecting those numbers. That’s true although—rather obviously— when a person dials a phone number he or she does not do so intending to share information with a phone carrier, but merely transmits the number as a necessary part of the calling process. But Smith holds that a person’s subjective intention respecting the limited purpose for which the number was dialed does not blunt the legal effect of sharing the data with a third party—any third party.

While Carpenter refuses to extend Smith to allow the government to achieve the “near perfect” surveillance afforded by cellular location data, Smith remains good law around the edges. It stands to reason, therefore, that if a person cannot expect privacy in the numbers he or she dials from a phone, a person also cannot expect privacy respecting calls made to a number he or she voluntarily provides to the public. That would seem, for instance, to include numbers held out to the public on websites and perhaps even numbers transmitted via caller ID to collection agencies. That is not to say that collecting such numbers constitutes express consent—it does not—but can numbers so collected be deemed “private” in any sense of the word under the precedent of Smith? And, if not, can calling such a phone number ever amount to an invasion of privacy?  

So although Carpenter elucidates a limit to the Supreme Court’s expansive “reasonable expectation of privacy” and “third party records” precedent, it certainly does not overrule these privacy-splicing doctrines. Leveraging these tenets may someday provide powerful ammunition to callers seeking to defend TCPA suits brought by individuals that received calls in public places or via numbers supplied in a public forum.