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

Smartphones

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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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Daryl's other brother Darryl says:

    Good excuse to shut your phone off early and often.
    There’s probably a lot of money to be made marketing a phone that doesn’t broadcast all kinds of personal info.

    Like or Dislike: Thumb up 1 Thumb down 0

  2. MBunge says:

    I’m a big believer in strong 4th Amendment protections but I’m not sure it’s fundamentally a wonderful idea to expand them because we’re all idiots using an incredibly invasive technology without thinking about it for even five seconds. We really need a more comprehensive discussion and Congressional leadership (ha!) on how we as a society draw the lines on this, not nine lawyers in DC throwing out established standards because people are addicted to their smart phones.

    Mike

    Like or Dislike: Thumb up 0 Thumb down 2

  3. Daryl's other brother Darryl says:

    @MBunge:

    We really need a more comprehensive discussion

    This from a rabid supporter of an authoritarian wannabe.
    You can’t applaud Russia invading us, and expect to maintain your freedoms.
    You are fvcking confused Bunge.

    Like or Dislike: Thumb up 2 Thumb down 1

  4. SKI says:

    @Daryl’s other brother Darryl: ummm….

    well….

    ummm….

    Do you realize that is your phone doesn’t broadcast its whereabouts to cell towers, you couldn’t actually use the phone to receive calls, emails, data service, etc.?

    _______________

    Prediction: SCOTUS is going to have to re-visit Jones when law enforcement uses satellite imagery to track a car’s movement for days, weeks, months….

    Like or Dislike: Thumb up 0 Thumb down 0

  5. Daryl's other brother Darryl says:

    @SKI:
    Gee, really? NFS
    I’m thinking about something along the lines of a burner phone, that isn’t actually a burner.

    Like or Dislike: Thumb up 1 Thumb down 0

  6. grumpy realist says:

    Doug–thank you muchly for doing an analysis of this case. I read the WSJ’s analysis, which was, well, very WSJ-ish.

    It’s also a very interesting look at how new technology raises legal head-scratching issues. We’ll see if the usual suspects over at TAC panic on the topic (as they regularly do concerning any technology affecting biology/sex/sexual identity and predict the immediate DOOM of the U.S.)

    Like or Dislike: Thumb up 0 Thumb down 0

  7. Franklin says:

    @MBunge: Not sure what “established standards” you are talking about.

    Just get a goddam warrant, like you’ve been required to for the past 200+ years. Problem solved.

    Like or Dislike: Thumb up 2 Thumb down 0

  8. Gustopher says:

    @SKI: Didn’t the SCOTUS decide it was “plain view” to have a helicopter hovering over a house more than N feet away, using thermal imaging to detect a pot growing operation?

    I think satellite imagery would be just as plain view.

    Like or Dislike: Thumb up 0 Thumb down 0

  9. TM01 says:

    Wow. Third post and some nut job has to bring up Muh Russia.

    Other questions:
    How would a limitation here affect security cameras put up by private individuals and businesses? Will the police still be able to just ask for those?
    What about things like OnStar? Is there really a difference between location data between that and a cell phone?
    Or what about any cell-enabled vehicle?
    Could the police bypass the cell providers and just ask Google, Apple, or FB for location data?

    Like or Dislike: Thumb up 0 Thumb down 0

  10. Daryl's other brother Darryl says:

    @TM01:
    You can’t support an authoritarian, look the other way at Russia invading us, and worry about your freedoms. It’s intellectually dishonest.
    Not surprising for you or Bunge.

    Like or Dislike: Thumb up 0 Thumb down 0

  11. HarvardLaw92 says:

    @Franklin:

    Just get a goddam warrant, like you’ve been required to for the past 200+ years. Problem solved.

    Per Smith v. Maryland (et al), you do not have a reasonable expectation of privacy with respect to third party business records, ergo obtaining such records does not constitute a search within the context of the 4th Amendment and no warrant is required.

    They may be requested by law enforcement and voluntarily supplied by the business in question, or they may be produced involuntarily in response to a subpoena duces tecum. In either case, the records are the property of the business in question, not the property of the person(s) whose activities they document.

    Since there is no 4th Amendment search in these instances (the doctrine applies to far more than just telephone records), the party seeking access need demonstrate nothing more than reasonable suspicion.

    Like or Dislike: Thumb up 3 Thumb down 0

  12. HarvardLaw92 says:

    @TM01:

    Other questions:

    How would a limitation here affect security cameras put up by private individuals and businesses? Will the police still be able to just ask for those?

    No

    What about things like OnStar? Is there really a difference between location data between that and a cell phone?

    No difference, and yes.

    Or what about any cell-enabled vehicle?

    A warrant would be required to obtain the data in question directly from the vehicle, but not from either OnStar or the cell provider.

    Could the police bypass the cell providers and just ask Google, Apple, or FB for location data?

    Yes.

    Like or Dislike: Thumb up 2 Thumb down 0

  13. JohnMcC says:

    There is long experience at devices that talk over air instead of wires. If I am chatting with another boater on Tampa Bay over the VHF it is understood that I have no expectation of privacy. All sorts of code has been made up to keep treasured fishing spots secret because everyone is ALWAYS listening. The Coasties monitor VHF and everyone on the water is pretty damn happy they do. Cruising yachties have open-line gab sessions to plan the day’s beach volley ball picnic. How is the signal from someone’s cell phone any different except more people are using them and have their expectations shaped by the ‘land line’ that they grew up with?

    The damn things aren’t tattooed onto someone’s palm (altho you’d never know it). They can be left at home whenever you wish.

    Yes, I am old.

    Like or Dislike: Thumb up 0 Thumb down 0

  14. gVOR08 says:

    I seem to recall that in a few countries the top appeals court has an option of deciding a case based on current law, but also making a formal recommendation to the legislature that the issue in question be addressed in new legislation. Don’t know what force such a recommendation has. It seems to make sense in a case like this. Although for once I agree with Bunge. I don’t want the current Congress touching this. Or anything else for that matter. Especially taxes and health care.

    Like or Dislike: Thumb up 0 Thumb down 0

  15. CET says:

    @HarvardLaw92:

    Is Gorsuch’s insistence on examining whether or not records can be considered property evidence that he might be contemplating and end-run around Smith v. Maryland?

    Like or Dislike: Thumb up 0 Thumb down 0

  16. HarvardLaw92 says:

    @CET:

    I think it’s more of a signal that he doesn’t like the doctrine in general, but he’s not the concern with respect to overturn IMO. I think Sotomayor will be. She’s been the drum banger on this one for a while now.

    Like or Dislike: Thumb up 0 Thumb down 0