Congress has provided that “[e]very telecommunications carrier has a duty to protect the confidentiality of proprietary information of, and relating to, … customers.” 47 U.S.C. § 222(a); § 222(c). And the WCPSA defined “customer proprietary network information” to include “information that relates to the … location … of use of a telecommunications service subscribed to by any customer of a telecommunications carrier, and that is made available to the carrier by the customer solely by virtue of the carrier-customer relationship.” § 222(h). The WCPSA also established a special “express” consent requirement specifically for disclosure of customer location information. § 222(f).There are certain statutory exceptions to these protections, see § 222(c) & (d), but the only one that seems applicable in Carpenter is a general reference to disclosure “as required by law.” In several cases, the government has argued that that exception allows for disclosure orders like the one in Carpenter. See 2012 WL 604860 at 29-30 (discussing 18 U.S.C. § 2703). But that kind of government-only exception is precisely what triggers the positive law model or floor: the point of those approaches is to provide a constitutional check on the government’s access to information that is denied to similarly situated private parties.Further, the WCPSA is linked to a cause of action for individuals. See 47 U.S.C. § 207. That provision is important because government exceptionalism may not be enough to secure protection under the positive law model or floor: in addition to violating laws applicable to similarly situated private parties, the government may have to violate a personal legal right of the defendant himself. By treating locational information as a customer’s “proprietary information” and affording customers a cause of action, Congress seems to have signaled that the defendant did indeed have a personal right to locational privacy.
November 21, 2017 at 12:17 PM EST