Outside the Beltway

Supreme Court Hears Argument In Case Involving Fourth Amendment Rights And Technology

The Supreme Court heard oral argument yesterday in what could end up being a landmark case on the issue of the scope of Fourth Amendment rights in the 21st Century.

Doug Mataconis · Thursday, November 30, 2017 · 16 comments

Yesterday, the Supreme Court heard oral argument in a long-anticipated case that could have a significant impact on privacy rights in the digital era and, at least on a preliminary basis, it appears that the Justices were quite skeptical of the government’s arguments that old standards should apply in the digital age:

WASHINGTON — At a lively Supreme Court argument on Wednesday, a majority of the justices seemed troubled by the government’s ability to acquire troves of digital data without a warrant.

“Most Americans, I still think, want to avoid Big Brother,” said Justice Sonia Sotomayor. “They want to avoid the concept that government will be able to see and locate you anywhere you are, at any point in time.”

The argument lasted 20 minutes longer than the usual hour. By its conclusion, at least five justices seemed prepared to limit the government’s power to obtain records from cellphone companies showing their customers’ locations over long periods of time. But there was no consensus about a rationale for a decision or about how far the court was prepared to go to reshape longstanding constitutional doctrines that allow the government to obtain business records held by third parties.

The case concerns Timothy Ivory Carpenter, who was convicted of participating in a series of robberies, based in part on records provided by his cellular carrier showing his movements over several months. Nathan Freed Wessler, a lawyer for Mr. Carpenter, said prosecutors had violated the Fourth Amendment, which bars unreasonable searches, by failing to get a warrant for the information.

A ruling in Mr. Carpenter’s favor could revise a fundamental Fourth Amendment principle: that people have no reasonable expectation of privacy when they voluntarily turn over information to a third party, like a phone company.

Some justices said they were wary of acting rashly and worried about the consequences of a ruling in favor of Mr. Carpenter.

“This new technology is raising very serious privacy concerns,” Justice Samuel A. Alito Jr. told Mr. Wessler, “but I need to know how much of existing precedent you want us to overrule or declare obsolete.”

The court’s decision in the case, Carpenter v. United States, No. 16-402, will apply the Fourth Amendment, drafted in the 18th century, to a world in which people’s movements are continually recorded by devices in their pockets and cars, by toll plazas and by transit systems.

“A great many highly sensitive digital records,” Mr. Wessler said, “like search queries entered into Google, a person’s complete web browsing history showing everything we read online, medical information or fertility tracking data from a smartphone would be vulnerable” unless the Supreme Court acts.

The justices seemed at odds over how to address the issue. Several said the problem was that the level of detail in Mr. Carpenter’s phone records violated his reasonable expectation of privacy. Others, notably Justice Neil M. Gorsuch, took a different approach, saying the problem was that the records were his property and should not have been disclosed without his consent or a warrant.

Michael R. Dreeben, a lawyer for the federal government, urged the justices not to take drastic action. “The technology here is new,” he said, “but the legal principles that this court has articulated under the Fourth Amendment are not.”

Amy Howe analyzes yesterday’s argument for SCOTUSBlog:

The Supreme Court heard oral argument this morning in an important privacy-rights case. The defendant in the case, Timothy Carpenter, was convicted and sentenced to 116 years in prison for his role in a series of armed robberies in Indiana and Michigan. At his trial, prosecutors introduced Carpenter’s cellphone records, which confirmed that his cellphone connected with cell towers in the vicinity of the robberies. Carpenter argued that prosecutors could not use the cellphone records against him because they had not gotten a warrant for them, but the lower courts disagreed. Today the Supreme Court seemed more sympathetic, although they were clearly uncertain about exactly what to do. As Justice Stephen Breyer put it at one point, “This is an open box. We know not where we go.”

Defending the decisions below, Deputy Solicitor General Michael Dreeben, who took a brief break from his duties working on special counsel Robert Mueller’s investigation, drew a firm line in the sand. The technology at issue in Carpenter’s case may be new, but the legal principles implicated by the case are not, Dreeben told the justices. The case is governed squarely by the court’s decisions in United States v. Miller and Smith v. Maryland, which embody what is known as the “third-party doctrine”: The Fourth Amendment does not protect records or information that you share with someone else. So Carpenter’s case (and others like it) hinges, Dreeben contended, on how the government got the information. And here, he emphasized, the cellphone providers created the records for their own purposes and gave them to the government; the government did not collect the data itself.

Several justices were skeptical that the case was as simple as Dreeben depicted it. Chief Justice John Roberts pointed out that, in Carpenter’s case, the cellphone provider had not actually generated the records entirely on its own. Instead, Roberts observed, the cellphone records are more like a “joint venture” with the phone’s owner.

Justice Elena Kagan brought up United States v. Jones, in which the Supreme Court ruled that attaching a GPS device to the car of a suspected drug dealer and using it to track the car’s movements constituted a “search” for purposes of the Fourth Amendment. How is this case different from Jones, she asked Dreeben, in which five justices agreed that society did not expect the government to track a suspect’s every movement for an extended period of time?

Dreeben pushed back, maintaining that Jones involved direct surveillance by the government, while Carpenter’s case involves business records from the cellphone provider. But Kagan appeared unpersuaded, pointing to what she described as an “obvious similarity” between the two cases: reliance on new technology that allows for 24/7 surveillance. Dreeben reiterated that in the case of cell-site records, the government isn’t watching anyone; any “surveillance” comes from the phone company “because people have decided to sign up for cellular service in which it is a necessity … that your phone communicate with a tower and a business record is generated.” And to the extent that a cellphone owner believes that his cellphone records are or should be kept private, Dreeben added, the appropriate institution to address that concern is Congress, rather than the Supreme Court.

Roberts suggested that Dreeben’s argument was inconsistent with the Supreme Court’s 2014 decision in Riley v. California, in which the justices ruled that police must get a warrant before they can search the cellphone of someone who has been arrested. People don’t really have a choice about whether to have a cellphone, Roberts suggested.

Justice Anthony Kennedy seemed to see the question differently, however. He asked Nathan Wessler, who argued on Carpenter’s behalf, whether most people realize that their cellphone providers do have their data. “If I know it, everybody does,” Kennedy said, drawing laughter.

Justice Sonia Sotomayor was more sympathetic to Carpenter, and she tried to remind the court of the stakes in the case. Although this case is only about the historical cell-site records, which indicate where a cellphone connected with a tower, she stressed, technology is now far more advanced than it was even a few years ago, when Carpenter was arrested. A provider could someday turn on my cellphone and listen to my conversations, she said.

Sotomayor saw no reason why the court shouldn’t carve out an exception to the third-party doctrine to resolve Carpenter’s case. The doctrine, she noted, was never an absolute rule – for example, the Supreme Court has ruled that police can’t obtain medical records without the patient’s consent, even when the hospital (rather than the patient) is holding the records. Is it really that far off, she asked, to say that even if someone’s location at a specific place at a specific time might not be private, anyone would have an expectation of privacy in their whereabouts over 127 days?

Breyer echoed this idea. He agreed with Dreeben that, as a general rule, information shared with a third party would not be shielded from disclosure, but he proposed an exception to that rule to account for the significant changes in technology. Breyer returned to this idea later, telling Dreeben that the cellphone records at issue in this case are “highly personal,” more like medical test results than the kind of commercial information that has been disclosed under the third-party doctrine.

Justice Samuel Alito agreed that new technology has raised new concerns, but he appeared less receptive to the idea of carving out an exception to the third-party doctrine. He asked Wessler how he would distinguish the court’s earlier cases on the third-party doctrine. And in particular, he asked, is it really true that cell-site data are more sensitive than bank records? These days, Alito pointed out, because people rarely pay in cash, bank records can disclose everything – from magazine subscriptions to hotel stays – that someone purchases.

Wessler responded that most people know that their purchases can be revealed to others, but they have an expectation that their long-term movements will remain private. He suggested that the court could draw a temporal distinction, which would allow police to look at cell-site data for shorter periods of time – say, 24 hours – but not for 127 days, as in this case.

As I’ve said repeatedly, attempting to guess at the outcome of a particular case based on oral argument is not always an advisable strategy in any court case. Sometimes, judges ask questions for reasons that have nothing to do with how they may be leaning in a particular case. In some cases, it’s because they are attempting to get one side or the other to address a question that came up while reviewing the briefs filed in the case, or to address an issue raised by one of the briefs filed by third parties in connection with the case that aren’t necessarily addressed in the main briefs. In others, they may be attempting to address issues raised by a fellow Justice in their line of questioning or to aide one side or the other in addressing something that was not clearly addressed in response to a previous question. In some cases, they’re asking questions for purely academic reasons, which isn’t surprising given that several of the Justices spent at least part of the career after law school teaching in law school and spend some parts of their summer lecturing students in the United States and in Europe.

Notwithstanding those caveats, there are reasons to be optimistic based on the way that the oral argument went, at least if you’re someone who supports the idea that the privacy protections of the Fourth Amendment need to be updated to reflect the realities of the digital era. At the very least, it appears from the argument that it’s unlikely that there is a majority of Justices to support the proposition that law enforcement would never need a search warrant to obtain location data or history for a smartphone. As several of the Justices noted during the course of the argument, these devices have become so ubiquitous that people carry them everywhere they go, including at times and in locations where they can legitimately be said to have an expectation of privacy. Allowing that information to fall into the hands of police without first requiring that they demonstrate to a Judge that they have probable cause to believe that the target of the investigation has committed a crime or that the information would yield evidence that could be admissible in court would be a serious attack on personal privacy and individual rights.

The question for the Justices, then, would appear to be where the line should be drawn in the light of the ways that the expectation of privacy has changed in the digital era. This isn’t the first time that the Court has faced such issues, of course. Back in 2012 in the case United States v. Jones, the Court ruled that attaching a GPS device to a suspect’s vehicle in order to track their movements constituted a search for Fourth Amendment purposes, which would typically mean that law enforcement would need to obtain a warrant before taking this step. As I noted in a post back in June when the Court accepted the Carpenter case for review, Justice Sotomayor noted in a concurring opinion the extent to which expectations of privacy in the digital age have changed significantly from what existed during the time that the court decided cases such as Smith v. Maryland. In that 1979 case, the court ruled that law enforcement did not need to obtain a warrant to obtain information on what numbers had been called from or to a certain phone number because there was no reasonable expectation of privacy in that information. At that time, that was probably the case. However, as Sotomayor noted in her concurrence, that expectation has arguably changed in an era where the devices that are used to communicate are broadcasting all kinds of personal information without our knowledge and beyond our control. Two years after Jones, the Court ruled in Riley v. California that law enforcement could not search the contents of a cell phone or smartphone without first obtaining a warrant.  As I noted at the time, this was a hopeful first step along the road of what will be a prolonged process of courts having to determine how the Fourth Amendment applies to modern technology. Yesterday’s argument suggests that this case will yield at least somewhat of another correct step toward recognition of a broad right to privacy in the digital era.

I’ve embedded the argument transcript below, and you can read the briefs that have been filed in this case via the case information page at SCOTUSBlog.

Carpenter v. United States Transcript by Doug Mataconis on Scribd

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