Conservatives, Reporters, Farmers Back Robber at Supreme Court

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By Jordan S. Rubin

Why are conservative groups, journalists, and the ex-proprietor of a cash-only Mexican restaurant supporting an armed robber at the Supreme Court?

The answer lies in amicus briefs filed in Carpenter v. United States, the huge mobile phone data case that will be argued during the high court term that starts Oct. 2.

Outside groups have filed over a dozen briefs in support of Timothy Carpenter, who was convicted of several armed robberies in Michigan federal court based partly on data that showed his mobile phone was in the vicinity of the crimes when they occurred in 2010-11. Law enforcement got the data from his wireless carrier with a court order that required less proof than a warrant.

The U.S. Court of Appeals for the Sixth Circuit upheld the warrantless action under the third-party doctrine, a 1970s-era legal theory that has allowed the government to obtain mobile phone location data from carriers without warrants.

The data is voluntarily conveyed to the carrier by the phone user, so there’s no expectation of privacy in the data that would otherwise trigger constitutional protections against unreasonable search and seizure under the Fourth Amendment, proponents of the doctrine say.

Carpenter’s case presents the justices with an opportunity to hold, for the first time, that a warrant is required to get “cell site location information,” as the data is called in court filings. That is, a decision in Carpenter’s favor could upend the third-party doctrine as we know it.

Predictably, the doctrine is unpopular with criminal defendants like Carpenter who are foiled by their own phones.

But he’s not alone.

In a sign of the case’s importance, leading technology companies—including Apple Inc., Facebook Inc., and Alphabet’s Google Inc.—have weighed in to argue that “rigid rules” like the third-party doctrine “make little sense in the context of digital technologies and should yield to a more nuanced understanding of reasonable expectations of privacy.”

And though it’s common to see an array of amicus briefs filed in a potential watershed Supreme Court case, some distinctive filings submitted on Carpenter’s behalf call attention to issues that may not immediately come to mind when thinking of the search and seizure question presented by his case.

If the Supreme Court upholds the third-party doctrine in Carpenter’s case, negative consequences will flow, not only to the privacy interests of criminal defendants, but also to law-abiding business owners, reporters, political groups, and any American who uses a mobile phone, the filings argue.

‘Dragnet Searches’

One of the outside briefs comes from the Institute for Justice, a libertarian non-profit firm, along with two of the institute’s clients and DKT Liberty Project, a limited government group.

They take aim at a topic that has come under increased public scrutiny but isn’t directly at issue in Carpenter’s case: civil asset forfeiture.

Their brief discusses two cases where the institute represented small business-owners in civil forfeiture proceedings against the IRS.

Mobile phone data didn’t factor into the “Orwellian nightmare” endured by the business owners, but the third party doctrine did, the brief says, insofar as the government relied on it to get their bank records with a subpoena rather than with a warrant.

One of the institute’s clients was Carole Hinders, who opened Mrs. Lady’s Mexican Food in Iowa in 1977. It was a family business that only took cash. It closed after Hinders retired a few years ago.

While the business was running, Hinders made cash deposits under $10,000, which drew the attention of the IRS because criminals sometimes deposit money in that way to evade federal bank reporting requirements. The IRS seized Hinders’ bank account and returned the money 21 months later, according to the institute’s brief.

Randy and Karen Sowers were also pursued by the IRS. They run a dairy farm in Maryland. Like Hinders, they made cash deposits under $10,000 and their account was seized. Their money was returned four years later.

Neither Hinders nor the Sowers were charged with any crimes, the brief said.

While criticizing the government’s asset forfeiture policy generally, the institute also points to the third-party doctrine as a culprit for what it views as shoddy police work, at best.

“What happened to Carole, Randy, and Karen was only possible because, under this court’s precedents, information a person conveys to a bank is categorically excluded from Fourth Amendment protection,” the brief says, in reference to the 1970s Supreme Court precedents that endorsed the third-party doctrine.

“If the same categorical rule were applied to the cell-site location information” at issue in Carpenter’s case, “innocent Americans would be caught up in dragnet searches of their CSLI, just as Carole, Randy, and Karen were caught up in dragnet searches of their bank records,” it argues, using the acronym for cell site location information.

But even if the justices rule in Carpenter’s favor, that doesn’t necessarily mean bank records will get Fourth Amendment protection, Stephen E. Henderson, a professor at the University of Oklahoma College of Law in Norman, Okla., told Bloomberg BNA. Henderson’s scholarship was cited in one of the amicus briefs filed in support of Carpenter that focuses more directly on Fourth Amendment issues.

Orwellian FCC

Like the institute’s brief, an amicus filing from a bloc of 10 conservative and gun groups pushes back against the government’s (and the Sixth Circuit’s) notion that Carpenter voluntarily gave up his phone data. On the brief is Citizens United, whose 2008 anti-Hillary Clinton film led to the Supreme Court’s landmark 2010 campaign finance decision—famous or infamous, depending on one’s viewpoint—that bears the group’s name.

And whose fault is it that giving up phone data is involuntarily? The federal government’s, they say.

“It was Congress and the FCC that pushed for the creation and collection of CSLI,” their brief says.

“For nearly a century, the Federal Communications Commission has been given, and exercised, sweeping powers over the nation’s airwaves, designating various radio frequencies for specific uses by specific users,” it says.

Because of this federal grant of power, all Americans “are caught in a government-designed web, under which they may communicate over distance on no frequency other than government-approved cellular frequencies—and are prohibited in doing even that without going through a government gatekeeper wireless provider,” the brief says.

“Under such a system of pervasive control,” it says, “the Orwellian tracking of Americans cannot be justified on a theory which presumes voluntary action and consent,” it concludes, painting a similar dystopian picture to the institute’s lament of civil forfeiture.

The FCC declined to comment on the case.

First Principles

Though the justices are asked to decide whether the Fourth Amendment applies in Carpenter’s case, some of the outside briefs are concerned with another amendment: the First.

One of the First Amendment-focused briefs comes from the Reporters Committee for Freedom of the Press and 19 media organizations. Another was filed by a diverse band of racial justice and economic freedom groups, led by the Center for Competitive Politics, an organization whose goal, according to its website, is “to promote and defend the First Amendment’s rights to freely speak, associate, assemble, publish, and petition the government.” A brief from several groups including the Electronic Frontier Foundation, a digital civil liberties group, also advocates First Amendment interests.

The competitive politics brief’s concern is that, in “a world where tracking information is so precise that individual rooms can be differentiated, the locations of multiple people can be amalgamated, allowing the government to assemble an extraordinarily precise picture of citizens’ memberships, meetings, and associations.”

Thus, “the government’s warrantless access to this information threatens Americans’ First Amendment right ‘to pursue their lawful private interests privately and to associate freely with others in so doing,’” they argue, quoting NAACP v. Alabama. The Supreme Court held in that 1958 case that the state couldn’t force the civil rights group to reveal its membership list in order to operate in the state.

A ruling against Carpenter, then, could “discourage Americans from engaging in public gatherings and private meetings of all types, chilling both social and political association and the collective speech it fosters,” they conclude.

And though Carpenter stems from a criminal prosecution, the privacy issue “applies equally to the data of any cell phone user, including journalists,” the media brief claims.

That means mobile phone data “can also reveal details about the newsgathering process, including reporters’ communications with their sources, because the practical realities of contemporary newsgathering require journalists to carry and use cell phones on a near-constant basis,” it says, arguing that a warrant should therefore be required to get the data.

Driving home its point about the importance of confidential sources, the media brief cites an historically prominent source with whom journalists met in person to evade government surveillance: “Deep Throat,” who “provided information to Washington Post reporters Bob Woodward and Carl Bernstein, exposing the Watergate scandal.”

Without confidential sources, “journalists ‘would be relying on the official side of the story, and the official side of a story isn’t always the whole side,’” the media brief says, quoting a USA Today op-ed that noted President Donald Trump’s stated dislike of such sources.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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