Fifty-nine year old Ross Compton was recently charged with aggravated arson and insurance fraud. After becoming aware of the fire in his home, Ross claims he used his cane to break his bedroom window and managed to toss out a couple of bags and a suitcase. Around 6:30 a.m., neighbors awoke to a loud explosion and saw flames leaping from the house. One neighbor reported calling 911 and rushing over to find Mr. Compton carrying his computer tower to his car. The fire caused $400,000 in damages to his Middletown, Ohio home.
Doubting Mr. Compton’s tale of events, police opened an investigation into the cause of the fire. They eventually obtained a warrant to search the recorded data from Mr. Compton’s pacemaker. To validate Mr. Compton’s story, his heart rate, pacer demands, and cardiac rhythms were carefully analyzed. According to one cardiologist, “It is highly improbable Mr. Compton would have been able to collect, pack and remove the number of items from the house, exit his bedroom window, and carry numerous large and heavy items to the front of his residence during the short period of time he has indicated due to his medical conditions.”
Police agreed. This, coupled with traces of gasoline on his person and multiple points of origin for the fire, led to Ross Compton’s indictment on February 7, 2017. How these charges will play out in court has yet to be seen.
“The constitutionality of searching a heart monitor brings with it completely new considerations.”
While other countries have since thrown in the towel, the battle between personal privacy and public safety continues to be a long and drawn out struggle in the United States. In 2015, California landed a powerful blow for privacy advocates with a bill that restricted the government from accessing personal metadata without a warrant. However, not all states have followed suit. As technology advances, new privacy and safety questions arise and old principles can be stretched to achieve different results. Over the last couple years, Apple has been in the spotlight for refusing to unlock iPhones, even in the face of search warrants. On February 3, 2017, an Eastern District of Pennsylvania judge ordered Google to disclose emails stored in servers outside of the U.S. On February 6, the House of Representatives passed a bill that would require a warrant before specifically searching email or cloud data stored on third-party servers.
Cell phone monitoring has been a particular source of serious debate. The ACLU provides on their website a map of the current laws each state has regulating the tracking of cell phones. Nonetheless, the constitutionality of searching a heart monitor brings with it completely new considerations that have little to no legal basis at this time. A look at how the courts have considered other technologies can be helpful, but may provide little more than a guess as to how the court will advance in the ever changing world of criminal procedure.
The Fourth Amendment to the U.S. Constitution lays out the framework for this discussion. It provides, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In 1979, the Supreme Court of the United States concluded in Smith v. Maryland that the defendant did not have a legitimate expectation of privacy when he voluntarily revealed information to a third party. Essentially the defendant had “assumed the risk.” In Smith, police installed a pen register to track the phone numbers dialed by the defendant. The Court held this was not a violation of the Fourth Amendment and did not even constitute a “search” necessitating a warrant. While a statute later amended police actions as far as pen registers, the principle remained and became known as the third party disclosure doctrine. While this is still the per se rule, there are hints in 2012’s United States v. Jones (see Justice Sotomayor’s concurrence) that the Supreme Court will reconsider this doctrine in the future.
“By 2012 the courts had a complex system of determining whether electronic monitoring required a search warrant.”
Like technology, Fourth Amendment case law continued to develop. By 2012 the courts had a complex system of determining whether electronic monitoring required a search warrant. The Justice Scalia approach, as developed in United States v. Jones, required the privacy expectations of the person and society as a whole be considered when there was a (1) physical trespass and (2) attempt to find information. In cases where there was no trespass, the Justice Alito approach considered whether the monitoring of the individual was for a short or a long period of time. However, both approaches dealt with whether a search had occurred and a warrant would be needed. If a proper search warrant was issued, the only other consideration is the Fourth Amendment’s language about “reasonableness.”
In addition to precedent on voluntary disclosures, another factor courts have considered is whether the monitoring is based on “historical” or “real time” cell phone data. Real time has historically received more privacy protection, while historical can often be obtained without a search warrant. The rationale is that an individual has less of a privacy interest in protecting where they went yesterday and more of an interest in preventing the constant monitoring of their current activities. However, the states are completely divided at this point as to where the line should be drawn, leading to a great amount of diversity in circuit decisions and state legislation. In Ohio, the location of Mr. Compton’s home, there is no warrant requirement for historical cell site location information (CSLI). Last year, the US Court of Appeals for the Sixth Circuit reiterated, “Although the content of personal communications is private, the information necessary to get those communications from point A to B is not.”
All of this does little to definitively answer the question of how to deal with the data on a heart monitor. In the present case, the information gained from Mr. Compton’s pacemaker was exclusively “historical” indicating a lower level of privacy invasion. It did not, however, indicate his physical location, but rather how his heart was beating at a specified time. It provides for an interesting twist. Is Mr. Compton entitled to more privacy? Or should a pacemaker be treated like any other technology?
“A crucial difference between a cellphone and a pacemaker is the voluntariness of the dissemination of information to third parties.”
A crucial difference between a cellphone and a pacemaker is the voluntariness of the dissemination of information to third parties. People make conscious decisions to buy phones and conduct illegal activities through text messaging, the internet, and phone calls. Every single beat of Mr. Compton’s artificial heart was data he had no real choice about disclosing. As a health necessity, was there really a choice to purchase this piece of technology in the first place? As Stephanie Lacambra pointed out to SC Media, “Americans shouldn’t have to make a choice between health and privacy. We as a society value our rights to maintain privacy over personal and medical information, and compelling citizens to turn over protected health data to law enforcement erodes those rights.”
As has been often quoted by the Supreme Court since Katz v. United States, “The touchstone of the Fourth Amendment is reasonableness.” Meaning, it is a case by case determination of weighing personal privacy vs. public safety. As such, different situations will call for different measures and result in cases on both ends of the spectrum. However, as a shield to protect our rights from government intervention, the Fourth Amendment should be construed to give deference to personal privacy.
Even though a magistrate found probable cause to issue a search warrant in this case, the key question to answer going forward is whether there are any areas exempt from the government’s gaze? As Justice Scalia famously wrote, “The Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.” Should data from the monitoring of internal organs be one?
Technology in the law will always provide for an interesting subject as long as there are new technologies to address. How health interacts with privacy, in particular, is an area that could drastically affect our lives. Considering the future is important in making decisions in new territory. We do not want a world as depicted in the recent dystopian film Elysium. It will be interesting to see how the Court will deal with the ever changing world of criminal procedure and technology. Hopefully, the balance between privacy and safety can be artfully maintained.