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The U.S. Supreme Court has handed down a major decision, Carpenter v. United States,1 concerning the Fourth Amendment’s application to the rapidly evolving technological landscape. The 5-4 decision dramatically alters the status quo concerning government requests for data about individuals that is collected and held by third parties. Under Carpenter, personal location information maintained by a third party that the government could previously obtain with a subpoena or similar order will now require a warrant meeting the standards of the Fourth Amendment.

By finding that information held by a third party is—in at least some circumstances—protected by the Fourth Amendment, the Supreme Court has upended decades of precedent in an effort to keep the amendment relevant in the digital age. Although portrayed by the court as a narrow decision, like other recent Supreme Court decisions concerning privacy and the Fourth Amendment, Carpenter will likely result in a broad reconsideration of what information law enforcement can properly obtain without a warrant. Companies will now have to carefully consider their statements regarding the sharing of data with law enforcement, and how they will respond to law enforcement agencies’ requests for data without a warrant.
Continue Reading U.S. Supreme Court Requires Warrant for Law Enforcement Requests for Location Information from Third Parties

On March 23, 2018, President Trump signed into law the Consolidated Appropriations Act, 2018, which contained a section entitled the Clarifying Lawful Overseas Use of Data (CLOUD) Act. The CLOUD Act significantly revises the rules underlying law enforcement requests for access to communications information stored abroad, and may have far-reaching implications for companies that collect, transmit, and store such communications.

The CLOUD Act resolves an ambiguity in federal law that increasingly served as a flashpoint between tech companies and law enforcement. Most prominently, this question was posed to the U.S. Supreme Court in United States v. Microsoft Corp, a case originating in 2013 that the Court heard on February 27, 2018. In Microsoft, the United States argued that U.S.-based service providers could be compelled to turn over responsive data when served with a warrant, whether held in America or abroad. Microsoft argued that the government’s warrant authority only reached data held in the U.S. itself. Before the Court handed down a decision, however, the CLOUD Act was passed, and with the case moot, the Court remanded and dismissed it at the request of both sides.
Continue Reading Congress Enacts the CLOUD Act, Granting Law Enforcement Access to Information Stored Abroad, and Mooting U.S. v. Microsoft