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The Original Meaning and the Carpenter Case: Establishing Joint Ownership of Customer Records

In my last post, I discussed whether the federal statute conferring protection of customer cell phone information, including location information, is sufficient to render such information a paper or effect.  My answer is that, based on my limited research, I am a bit skeptical that such information constitutes a paper or effect.  The terms paper and effect do not seem to refer to information, but to other things.

But there is a better way to protect this information, which might be accomplished by contract, state statute, or federal statute.  Imagine that a cell phone company and its customers reached an agreement that specified that all of the cell phone company’s records about the customer constituted the joint property of the customer and the company.  The agreement might provide that the records (and the information contained within them) should not be disclosed to third parties, except as allowed by the agreement.  The agreement might allow the cell phone company to use the records for certain purposes, such as to collect on a bill from the customer.

Would this agreement render the records a paper or effect?  There is a strong argument that it would.  The focus would be on the records themselves.  If the records were in paper form, then they would clearly be a paper.  If the records were in electronic form, they might constitute a paper or effect.  If the records were on a memory stick, they clearly would be an effect.

What if the records were on a hard drive contained in a computer?  The hard drive by itself again would seem to clearly be an effect.  But would a hard drive that is connected to a computer or to a server be an effect?  If the computer or server was personal property that could be moved – which it would seem to be – then the computer or server would be an effect.  But would the portion of the computer that contained the records be an effect?  It is not clear why not.  It is not clear why the fact that the records are part of a larger piece of property that contains other people’s property would mean the records are not an effect.

While this result could be accomplished through a contract between the cell phone company and the customer, it could also be produced through legislation by either a state or the federal government.

There is, of course, no obligation on the part of Congress or the states to provide this protection.  But the private parties and the individual states could choose to do so.

It might be argued that Congress could prevent this from occurring.  For example, the government reads the existing statute providing protection to customers as allowing an exemption for government search without a warrant.  But such a statute would be problematic if it applied to what would otherwise be a paper or effect.  It would be problematic for Congress to pass a statute that provided that owners of certain types of property were not entitled to Fourth Amendment protection.  Similarly, there would be constitutional issues if Congress sought to prohibit customers and cell phone companies from entering into arrangements that would provide Fourth Amendment protections to those customers.

Reader Discussion

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on December 07, 2017 at 12:49:59 pm

Interesting consideration of the hard drive upon which the information is stored.

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Devin Watkins
on December 07, 2017 at 13:34:51 pm

To clarify:

The State was NOT seeking the content of the cell calls, was it?

Rather, it sought only such information as would be generally, and freely AND properly available to the State were the State to have surveilled the miscreant bank robber.

EXACTLY what expectation of privacy does one have when meandering around the public spaces? - NONE!!!

Comes now an attempt to "cloak" this *free* data as either an effect or a paper, and as Rappaport has shown such an attempt is an abysmal failure. Only in the fevered minds of the Legal Professoriate may we discern some new, and heretofore, hidden meaning, no doubt in one of the penumbras and emanations we normally object to AND in the effort, we disavow any claim or protection for the property of the creator of that *effect* or data. Instead, we seek to "appropriate" for another, via legislation, the actual commercial property of the phone company based upon a perceived (construed, perhaps?) need to provide privacy protections to that which by it's very nature IS NOT PRIVATE - i.e., perambulations within and about the public spaces.

Again, I ask, where does COTUS grant the State the power to "seize" and / or modify / limit my property, i.e., cell tower billing data?

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gabe
on December 07, 2017 at 13:48:13 pm

It was not seeking the content of the cell calls, but that isn't important. The idea that the government can track your movements in public was dealt with in United States v. Jones, in which the government attached a GPS device to a person's car without a warrant. That required a warrant even if it was only tracking them in public places, because it violated the property rights of the individual to attach the GPS device to the car to do the search.

I don't know why you think such an argument is "an abysmal failure" when he says it is "a strong argument." There is no penumbras and emanations, its right there in the text of the Fourth Amendment.

The cell phone records are not public, they are quite private, and no one other than the phone company is normally allowed access to those without the permission of the user. It absolutely is private.

If it is your property, then the government cannot seize it (without a warrant or your permission), that is all the Supreme Court should say.

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Devin Watkins
on December 07, 2017 at 15:24:29 pm

One could even argue that given that most consumers have all you can eat phone plans, details of cell phone towers and locations are irrelevant as business records in the normal course of business, and there is no need for their retention. All that would matter is whether the calls were on network, or involved roaming or international calls not covered by your plan.

Anything else could require a warrant for them to set up the surveillance.

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Doug Wenzel
on December 07, 2017 at 15:30:16 pm

"...attached a GPS device to a person’s car without a warrant."

Yes, but that is quite different than merely accessing records of *acts* that have already taken place as part of a normal investigation of a criminal act. The GPS case indicates that the government sought to surveil "prior" to the commission of any overt act. Not quite the same.

And Rappaport does not seem to believe that this data qualifies as an effect:

"My answer is that, based on my limited research, I am a bit skeptical that such information constitutes a paper or effect. The terms paper and effect do not seem to refer to information, but to other things."

Rappaport goes on to then provide some conditions under which they MAY qualify as such - but these conditions do not obtain in this case.

Notice also that under these theoretical conditions, a *contract* between the user and the company is in place. There is no such *contract* in the present circumstances.

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gabe
on December 07, 2017 at 15:37:36 pm

Government violating property rights to determine your location over a four month time period. Seems fairly similar to me (and was brought up several times by the Supreme Court justices).

You don't think there is a contract between the phone company and the user? Why do you think that?

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Devin Watkins
on December 07, 2017 at 16:46:35 pm

Oh no, you misunderstand me - perhaps, I was not specific enough. I was saying only that in Rappaport's hypotheticals there is a contract AND that that hypothetical contract contains the terms necessary for this data to become "effects"
To my knowledge, THAT is not the nature of the contract that i have with my cell carrier.

And it seems to me that "Government violating property rights" may actually indicate that the cell carrier's property rights have been violated NOT the user as it has not yet been established that the miscreant had ANY property interest in the data. This is an assertion that needs to be proved not proof of the assertion.

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gabe
on December 08, 2017 at 13:39:27 pm

Actually, not all people have "all you can eat" phone contracts.
I don't.
Moreover, it matters not what is deemed by you as necessary information for billing purposes - it only matters that the company has determined that it serves their overall billing needs to collect / retain such data.

Are we now to have some Black robed master tell the phone company HOW it should organize it's billing protocols?

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gabe
on December 08, 2017 at 16:26:34 pm

Devin:

Here is a link to comments from richard Epstein on this case.
Note how he recognizes that the GPS case you mention involves, and was so viewed by Scalia, as a *trespass* which is clearly not the case here.

https://www.hoover.org/research/reasonable-searches-digital-age

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gabe
on December 08, 2017 at 22:42:16 pm

I would say there was a trespass to chattels over the information owned by the user.

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Devin Watkins

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