Level 4 autonomous vehicles, vehicles that do not require human interaction in most circumstances, are predicted to be on the road as soon as 2021. Experts believe that as autonomous vehicles grow in popularity and availability, the prevalence of car ownership will dramatically decrease. Ridesharing will be much less expensive without a driver to pay and will be very convenient; additionally, autonomous vehicles will be safer but also more expensive. Therefore, it will likely be cheaper to buy every trip in a vehicle individually from a rideshare company than to buy a personal car with autonomous driving technology. This situation will implicate the third-party doctrine, an important and rapidly changing area of fourth amendment law. While the car and the physical items within it neatly fit into the current automobile exception, the computer and data aspects of autonomous vehicles should be treated as cell phones and cell-site location data – areas protected by the 4th Amendment more strongly than vehicles.
The rise of autonomous vehicles will change the nature of police work substantially. Autonomous vehicles will keep mountains of data on their passengers, and travel information can reveal a shocking amount of information. Police deserve every resource to stop potential crimes and to catch suspected criminals, but the Constitution provides protection for citizens so their privacy is not invaded – the Fourth Amendment. However, courts have ruled that the Fourth Amendment is much more limited when automobiles are involved, and courts have only recently begun to protect data in our quickly advancing technological society. As the advent of autonomous vehicles approaches, courts should prioritize the protection of individual privacy interests, despite the data’s relationship to a vehicle, which courts have traditionally viewed as an area of limited Fourth Amendment protections. Given the inherently personal nature of the data autonomous vehicles will possess on its passengers, there is a pressing need to give this data a high level of protection.
Automobiles have always been an area where the Fourth Amendment has offered less protection to individual privacy rights, including the containers found inside vehicles. This is relevant to our discussion because courts consider cell phones and computers to be containers under the Fourth Amendment. If a law enforcement officer can search a container in a vehicle, will he or she be able to search the computer of the autonomous vehicle during a stop?
The amount of information easily contained inside modern technology makes it difficult for police to comprehend the proper scope of a search. The Supreme Court resolved the question of scope with regard to searches of cell phones with its decision in Riley v. California. In Riley, the Court held that a warrant is necessary to search a cell phone, even if it is seized incident to an arrest. Until this case, the Court had not addressed electronic devices; after this decision, it became clear that cell phones are considered “containers” under the Fourth Amendment. The Court went on to stress that a cell phone is not a traditional container, saying that cell phones contain digital records of every aspect of a person’s life. Such an item is entirely different from allowing a law enforcement officer to look through a traditional container like a file cabinet. Similar to cell phones, autonomous vehicles will store large amounts of information on its passenger. Warrants should state the items on the vehicle computer to be searched with particularity. The warrant should not be able to simply list, “the car,” and satisfy Fourth Amendment protections.
While the precedent set in Riley is applicable to drivers who will purchase their own autonomous vehicles, experts predict that many people will not own personal autonomous vehicles, but instead elect to use rideshare services because of the expensive price tag of autonomous vehicles. The GPS data then would not be tied to the vehicle, but to the customer who orders the vehicle. These situations are when the third-party doctrine gains importance. The third-party doctrine says that there is no reasonable expectation of privacy if the information is purposefully provided to third parties. However, the Supreme Court recently held in Carpenter v. United States that a warrant is required in order for law enforcement officers to access one type of third-party information: cell-site location data directly from a cell phone company. Carpenter hit at the intersection of the third-party doctrine and location information, which the Court had previously upheld as an important Fourth Amendment protection. The Court’s majority opinion held that people maintain a reasonable expectation of privacy over their movements as determined through cell-site location information, and therefore law enforcement officers must obtain a specific warrant to obtain this information from cell phone companies. Justice Roberts discusses the concurrences in United States v. Jones, where both Justices Alito and Sotomayor say that long-term GPS monitoring of a suspect during an investigation invades a reasonable expectation of privacy, regardless of if those movements were available for the public to see since they occurred on public roads.
While the cell-site location data has many of the same qualities of the Jones-style tracking the Court upheld, the “unique nature” cell-site location data calls for Fourth Amendment protection. In order to access this information, law enforcement officers must obtain a warrant.
Uber already gets frequent information requests from law enforcement. On Uber’s legal website, the company states that in order to release information to the police, a subpoena is required in connection with an official criminal investigation. Additionally, law enforcement officers must show a warrant to compel disclosure of GPS information. Uber notes that they make exceptions in emergency situations.
In conclusion, autonomous vehicles will require the automobile exception jurisprudence to adapt in order to protect users’ privacy. Riley, where a warrant was required to search the contents of the cell phone, and Carpenter, where information provided to third parties must be obtained only with a warrant, are easily transferrable to the future jurisprudence surrounding autonomous vehicles. These two cases provide the courts with positive examples of how to protect privacy for autonomous vehicles and bring the Fourth Amendment into the 21st century.
* Lindsay Grizzard is an Associate Editor on the Michigan Technology Law Review.