Privacy Rights in Cyberspace and the Fourth Amendment

By Cathy Ostiller, WLALA Criminal Justice Section Co-Chair

January 2021

On December 8, 2020, the WLALA and LACBA Criminal Justice Sections co-hosted a Zoom webinar entitled “The Impact of Carpenter and Facebook: What Can the Government Legally Access and How, and What Do Private Companies Have to Disclose in Response to Subpoenas?”  The moderator was Robyn K. Bacon, a partner at Munger, Tolles & Olson LLP, a former federal prosecutor, and a WLALA Board member.  Ms. Bacon moderated a one-hour panel comprised of four distinguished and knowledgeable speakers – Professor Laurie L. Levenson of Loyola Law School; Jean Costanza with the Alternate Public Defender’s Office; Robert Kang with Southern California Edison; and Jennie Wang VonCannon, a partner at Browne George Ross O’Brien Annaguey & Ellis LLP, a former Assistant United States Attorney, and a WLALA Board member.

Professor Levenson started off the panel with a discussion of the evolution of Fourth Amendment law leading up to the Supreme Court’s decision in Carpenter v. United States in 2018.  She began with the Supreme Court’s analysis of searches of places in Olmstead v. United States and moved on to the reasonable expectation of privacy as applied to phone booths in Katz v. United States and the “mosaic theory” of the Fourth Amendment discussed in connection with GPS trackers in United States v. Jones.  She then described the Carpenter decision and its requirement that law enforcement officers obtain search warrants to obtain historical cell site location information (“CSLI”).  Finally, she discussed one post-Carpenter case in the Ninth Circuit, United States v. Korte, related to parole tracking and the good-faith exception for obtaining CSLI without a warrant.

Ms. VonCannon spoke next and explained the ramifications of Carpenter for federal law enforcement officers and the ways in which the law has continued to evolve to make the prosecutor’s job more complicated.  Mr. Kang provided the perspective of in-house counsel – in the context of the company as both the victim and the recipient of a search warrant from law enforcement or a subpoena from a third party.  Finally, Ms. Costanza walked the audience through the California Supreme Court’s recent Facebook decisions – both Hunter in 2018 and Touchstone in 2020 – as they apply to defense subpoenas for social media material.  Ms. Costanza also explained how, after Touchstone, the courts are to apply the seven factors for “plausible justification” drawn from the 1988 California Court of Appeal decision in City of Alhambra v. Superior Court.  Through it all, Ms. Bacon interjected with thought-provoking questions and steered the panel to its ultimate conclusion as to what lies on the horizon in this area at the intersection of privacy law and criminal law.

My WLALA Criminal Justice Section co-chairs, Jennifer Lieser and Vicky Ourfalian, and I are very grateful to all of our panelists for their contributions to this fascinating, informative, and timely program.  We also thank WLALA’s own Kay Burt and Janelle Battaglia and Fatima Jones with LACBA for their assistance in preparing for and presenting this program.