Student Independent Study: "Locational Privacy in the data Age in Conflict with the Third-Party Doctrine"

Mark Turberville, Post-Baccalaureate in Paralegal Studies 2018, completed a semester-long independent study with Prof. Ryan Fortson with a a power point presentation on the third-party doctrine, a doctrine that is the subject of  Carpenter v. United States, currently before the United States Supreme Court. In addition to working with Prof. Fortson, Turberville received editorial support from Prof. Kristin Knudsen, Legal Studies Coordinator.

Mark Turberville presents on the third-party doctrine, a
paper developed during a semester-long independent study.

Turberville's paper, "Locational Privacy in the Data Age in Conflict with the Third-Party Doctrine," examines the interplay between an individual's right to be free from unlawful search and seizure as guaranteed by the Fourth Amendment of the U.S. Constitution and technological advances that are creating opportunities for collecting personal data unanticipated and unprotected by existing law. In particular, the ability of cell phone technology to gather locational data without the knowledge or consent of the holder of the cell phone.

Turberville traces the evolution of Fourth Amendment protections from the privacy of a person's home, to the privacy of the contents of posted letters, to the content of telephone communications, to the content of email communications, explaining how at each step courts have determined when a person's expectation of privacy is reasonable. In the 1970s, the courts made the delineation that when information is shared with a third party — such as a bank — there is no longer an expectation of privacy and that information may be obtained by police without a search warrant. Since the 1970s, when the third-party doctrine was established, technology has changed greatly and the breadth of information that has been allowed to be collected without full Fourth Amendment protections has also increased dramatically.

For instance, Turberville describes "pinging," where a government agent calls a target cell phone and hangs up without letting it ring. The "ping" allows the agent to collect cell site information and track the location of the phone, although the holder of the phone has taken no action.

Cell tower location information is routinely subpoenaed by law enforcement agencies, according to Turberville. And the volume is high — "From July 2015 to June 2016, for example, AT&T received 75,302 requests for cell phone location information." (p. 15).

But, as Turberville points out, the third-party doctrine is coming under fire from legal scholars and some state courts for leaving too much power in the hands of government. Eleven states have rejected the doctrine, and, based on comments in other decisions and Alaska constitutional protection of privacy, Turberville believes Alaska may reject the doctrine in the future.

In November 2017, the United States Supreme Court heard arguments in Carpenter v. United States, where the defense challenged the use of the third-party doctrine in the long-term surveillance involving smartphone data without a warrant. Data was transmitted and logged even when "location services" on the phone were turned off.

A decision is expected this summer.

Reference

• "Locational Privacy in the Data Age in Conflict with the Third-Party Doctrine" (slide presentation) by Mark Turberville. Legal Studies independent study presentation, University of Alaska Anchorage, Anchorage, 2 May 2018.