It’s not a ruling, as there is no majority of the Pennsylvania Supreme Court in its Commonwealth v. Kurtz opinion saying so, but that’s only because the fourth vote held it unnecessary to reach the question. The point, nonetheless, is clear. While the Supreme Court’s decision in Carpenter v. United States may have carved out a narrow exception to the Third Party Doctrine for cellphones, as a theoretical body part to which people have no real option to possess at all times and thus compelled to provide information to third-party providers, Google search is a voluntary act for which no warrant is needed.

In the case, the police were trying to find out who committed a sexual assault of a person known in the opinion by her initials, “K.M.” Police figured that whoever committed this crime may have googled K.M.’s name or address before committing the crime.  Investigators obtained what is known as a “reverse keyword search warrant,” asking for Google to hand over the I.P. address of whoever may have googled the name or address of the victim shortly before the crime.  Google responded that someone at a particular I.P. address had conducted two searches for K.M.’s address a few hours before the attack.  The I.P. address was in use at the home of the defendant, Kurtz.  The police had not suspected Kurtz in the crime, but they started to watch Kurtz closely, obtained a DNA sample, and found a DNA match from the crime.

At Volokh Conspiracy, Orin Kerr provides a lengthy quote from the decision.

A reasonable comparison can be made between the prevalence of the internet in modern society and the prevalence of cell phone usage. Such similarity, however, does not mean that they are one and the same for purposes of the third-party doctrine. Rather: “Carpenter’s expectation of privacy ruling was based upon more than just the fact that a contemporary American and his or her phone rarely, if ever, detach from one another. Nor was the decision premised exclusively upon the widespread coverage provided by cellular towers, or upon the fact that the records generated from connections to those towers can create an all encompassing roadmap of the person’s movements.

The ruling resulted from the amalgamation of these factors. Indeed, the linchpin of Carpenter was that, because of the inseparable relationship between a person and his cell phone, it is not objectively reasonable to expect that a cell phone user can avoid the creation of the records as he or she travels through the public sphere. Because the user has no reasonable way to limit the creation of the records, and because of the extensive information compiled by those records, the Court found that a reasonable expectation of privacy existed. The inverse must also be true: if a person can limit the creation of the records, or if the device or instrumentality at issue is not so inextricably and unavoidably attached to modern life, no such expectation of privacy would prevail.”

Carpenter is a curious decision, placing far greater reliance on Katz‘s reasonable expectation of privacy than on the Third Party Doctrine, despite the fact that cellphone data is clearly in the hands of third-party providers and any modestly sentient person would, or should, be well aware of that fact. It was not that there was any doubt that the Third Party Doctrine would otherwise apply, but that cellphones were so “inextricably and unavoidably attached to modern life” that privacy prevailed.

Yet, the court rejected the argument that the same was true of our Google searches.

It is beyond cavil that the internet is extensively intertwined with nearly every aspect of contemporary life. We use it to schedule appointments, to communicate with friends and former schoolmates, to play games, to hold meetings, and to conduct research on any number of topics. The list goes on and on. However, unlike smart phones, the internet is not a “feature of human anatomy.” The use of the internet is not involuntary, as cell phones have become. To the contrary, every time a person logs on to the internet, that person makes a choice. She chooses to input data into a network owned and operated by an internet service provider.

While users (reasonably) may believe that their searches are private, they nonetheless willingly transmit data to a third party whenever they type terms into a search engine and hit the “Enter” key. Unlike the cell phone user who cannot avoid creation of a data trail, the internet user can avoid or minimize the creation of such records by using other methods of research. A person seeking a restaurant reservation can telephone or visit the establishment rather than using the internet to book it. Someone hoping to learn more about dinosaurs or galaxies can conduct research in print materials at the library.

Of course, no one is forced to carry a cellphone, anymore than anyone is forced to use a search engine to perform routine functions of everyday life. You can call for a reservation just as well as using Open Table, but you can call on a landline rather than on a cellphone. Some of us still have landlines because we like to actually hear the people we’re talking to. Go figure.

Persons seeking privacy can shield their browsing history. The point is that the data trail created by using the internet is not involuntary in the same way that the trail created by carrying a cell phone is.

It is certainly true that people can shield their browsing history, or not browse at all. But if the critical factor is when technology has become so inseparable from everyday use to carve it out of the Third Party Doctrine, then this effort to distinguish cellphone data (which requires a warrant) from internet browsing (which may not) doesn’t cut it. Tech has become an integral part of life for most of us, without much thought or effort to protect it from the prying eyes of law enforcement. It’s all subject to the Third Party Doctrine, as it always has been, but if there is to be a distinction for cellphones that doesn’t apply to search engines, then it’s one without a difference.