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The U.S. Supreme Court may well side with a convicted armed robber’s challenge to the government’s warrantless acquisition of location data from his wireless carrier. But it’s not clear on what grounds the justices might render such a ruling, court watchers told Bloomberg Law.
Lawyers on both sides got tough questions from the justices at oral argument Nov. 29, including Justice Neil M. Gorsuch’s spirited scrutiny of what he suggested was the government’s disrespect for property rights as he thinks the framers of the Constitution understood them.
Timothy Carpenter argues law enforcement needed a warrant to get cell site location information from his carrier, which placed him near the scenes of several robberies.
Meanwhile, the government says Carpenter can’t bear the weight of decades-old precedents that say there’s no reasonable expectation of privacy in information voluntarily conveyed to third parties like banks and phone companies. And even though law enforcement didn’t get a warrant for the data, the government points out that it still got a court order under a law that requires judicial approval of records requests, albeit under a lower standard than probable cause.
But the argument revealed a high court majority sympathetic to Carpenter’s position that warrants are needed to get the records, court watchers said, even though the justices had a tough time figuring out what a ruling for Carpenter would look like, exactly.
The case has implications not only for mobile phone records but for all types of information held by companies in a world increasingly reliant on technology.
“Carpenter seems quite likely to prevail” at the high court, professor Matthew Tokson told Bloomberg Law.
Tokson’s article on whether mobile phone users know they give up location data to phone carriers was cited by Justice Sonia Sotomayor during the argument, as she criticized what she viewed as the government’s “Big Brother” tracking of its citizens.
“Only Justices Alito and Kennedy seem to be leaning towards the government side,” Tokson, who teaches at the University of Utah’s SJ Quinney College of Law in Salt Lake City, said. Justice Clarence Thomas, who, in line with his usual practice, asked no questions during the argument, “remains difficult to predict,” he said.
“The remaining Justices tended to be sympathetic to Carpenter, with Sotomayor leading the way, and Gorsuch very enthusiastic about a property or quasi-property approach,” he said.
A lawyer who filed an amicus brief supporting Carpenter agreed that a majority was on Carpenter’s side.
“A majority of the Court—Sotomayor, Ginsburg, Breyer, Kagan and probably Gorsuch and maybe Roberts too—seem troubled by the idea that people consent to the government having access to this detailed location information for indefinite periods of time,” Harry Sandick, litigation partner at Patterson Belknap Webb & Tyler LLP, New York, told Bloomberg Law.
But “it is not clear what the ultimate rationale for a ruling for Carpenter will be,” Sandick said.
The outcome is unclear because “reading the tea leaves” of the argument is difficult, professor Stephen E. Henderson of the University of Oklahoma College of Law in Norman, Okla., told Bloomberg Law. His scholarship was cited in one of the amicus briefs filed on Carpenter’s behalf.
“There are simply too many ways this could go, and it seems clear the Justices are themselves, understandably, still deciding which option is the best way forward,” Henderson said.
Court watchers agreed that Gorsuch’s questioning at oral argument was noteworthy, as the newest justice focused on the property rights embedded in the Fourth Amendment at the founding.
“You know, John Adams said one of the reasons for the war was the use by the government of third parties to obtain information,” forcing them to help as “snitches and snoops,” Gorsuch said. He was referring to writs of assistance, the broad warrants used by the British colonial government that motivated the Fourth Amendment’s passage.
Deputy U.S. Solicitor General Michael R. Dreeben countered that “those were writs that allowed people acting under governmental power to enter any place they wanted to search for anything that they wanted,” arguing that’s not what happened in this case because private phone companies—not government agents—are the ones collecting phone records in the first place.
It was “fascinating” when Gorsuch compared “modern government records access to the hated writs of assistance of our founding period,” professor Henderson said.
“It was also interesting to see Justice Gorsuch toy with applying the trespass- or property-based conception of Fourth Amendment search, which is consistent with his textualist leanings,” Henderson said.
“This conception of search was, of course, resurrected after a decades-long absence by a Justice Scalia opinion for the Court in” United States v. Jones, he noted. In that 2012 case, Gorsuch’s predecessor, Justice Antonin Scalia, wrote the decision holding that installing a GPS device on a vehicle to track it was a trespass onto personal property that required a warrant.
Gorsuch “surprised some by advocating a property-based theory” that you own your cell information, Sandick said.
The newest justice’s property-based approach was “novel,” but he may have a hard time getting four other justices to agree to form a majority opinion under that approach, privacy lawyer Hanley Chew of Fenwick & West LLP, Mountain View, Ca., told Bloomberg Law.
Lower courts rejected Carpenter’s Fourth Amendment challenge below by applying the third-party doctrine, a legal theory dating back to the 1970s in Supreme Court cases United States v. Miller and Smith v. Maryland.
Under that doctrine, people don’t have a reasonable expectation of privacy in information voluntarily conveyed to third parties. Because Carpenter’s wireless carrier is a third party and the government got the information from his carrier, no warrant was required, lower courts held below.
“For the government, the most effective argument seemed to be that older cases where the Court held that the police could obtain phone call records and bank records without a warrant were similar to this case,” Tokson said, referring to Smith and Miller.
“Carpenter’s attorney had difficulty distinguishing those cases from Carpenter’s,” he said.
Nonetheless, the doctrine “seems likely to be limited by the Court’s decision,” Sandick said.
Nevertheless Justices Anthony M. Kennedy and Samuel A. Alito Jr. quizzed Carpenter’s lawyer, Nathan Freed Wessler of the American Civil Liberties Union, on how to distinguish this case from Miller, where the government obtained bank records without a warrant.
“I agree with you, that this new technology is raising very serious privacy concerns, but I need to know how much of existing precedent you want us to overrule or declare obsolete,” Alito said.
And though the technology at issue in this case has developed greatly since the 1970s, the legal principles are the same, Dreeben said when he began his argument for the government.
But Justice Elena Kagan, who, like Sotomayor, was mostly critical of the government’s argument, asked why the ruling in Jones that a warrant was required to install a GPS on a car shouldn’t lead to a ruling here that a warrant is required for the phone records.
This case is different from Jones because the government got Carpenter’s records from his wireless carrier rather than by installing a device directly on a person’s property to track him, Dreeben said.
Kagan didn’t seem convinced. She went on to note that third parties have much more information now than they did in the 1970s when Miller and Smith were decided.
“For Carpenter, the main theme was simply that the Justices seem uncomfortable with giving the government the power to track people’s locations indefinitely without constitutional restriction,” Tokson said.
But “the Justices have different views of why such tracking requires a warrant,” he said.
Wessler argued that obtaining Carpenter’s records in this case should have required a warrant in part because of the amount of location data—several months’ worth—it revealed.
He conceded, however, that shorter term phone data collection—less than 24 hours’ worth—might be okay without a warrant.
Justice Ruth Bader Ginsburg suggested Wessler’s 24-hour rule doesn’t make sense. She asked why it would have been permissible for law enforcement in this case to get phone location records for just one of Carpenter’s robberies but not eight of them just because they occurred on different days.
Chief Justice John G. Roberts Jr. also had a line-drawing issue.
“What is the line we’re drawing?” Roberts asked Wessler. “It seems to me the line is between information to which the authorities have access and information to which they don’t. I don’t know why we’re bothering about a line between six hours, three weeks, whatever,” he said.
Roberts authored the high court’s unanimous opinion in another recent tangle with technology applied to the Fourth Amendment, writing for the court in Riley v. California, decided in 2014, that warrants are required to search arrestees’ mobile phones.
And Justice Stephen G. Breyer seemed to have his own line-drawing theory, namely that it should be drawn “based on how sensitive the information is—and that location data is quite sensitive and personal,” Tokson said.
Another issue that seemed to divide the justices was whether people know the extent to which their phone carriers collect location information from them.
“Well, I mean, that’s a debatable empirical point whether people realize what’s going on, and there’s reason to think maybe they do,” Alito said. “I mean, people know, there were all these commercials, ‘can you hear me now,’ our company has lots of towers everywhere. What do they think that’s about?” he asked.
Kennedy also seemed to think everyone knows this type of information is collected.
“If I know it, everyone does,” Kennedy said, to laughter in the audience.
But a survey cited in an amicus brief supporting Carpenter shows that most Americans are wary of the type of surveillance at issue in this case, Sotomayor said, referring to Tokson’s article.
“Most Americans, I still think, want to avoid Big Brother,” Sotomayor said.
“They want to avoid the concept that government will be able to see and locate you anywhere you are at any point in time,” she said.
Yet another dividing line among the justices was the importance, if any, of the law under which the government obtained Carpenter’s records in this case.
The Stored Communications Act lets law enforcement get phone location records under a lower standard than probable cause, but it still requires judicial approval.
The government says the act sufficiently balances investigative interests with privacy. Carpenter says nothing less than a probable cause warrant will do.
When law enforcement obtains records pursuant to the act, it’s “operating under a statutory regime that requires us to make a particularized showing,” Dreeben said in arguing that the law strikes the proper balance.
“But, Mr. Dreeben, that could go away tomorrow,” Kagan retorted, implying the legislature’s ability to repeal laws. “The question here is the constitutional question, not the statutory one,” she said.
On the other end of the spectrum, Kennedy faulted Wessler for apparently giving “zero weight in your arguments to the fact that there is some protection” under the act.
Regardless of how the justices come down on the weighty Fourth Amendment question in his case, Carpenter may find his journey to the high court was all for naught if his only goal is to get out of prison.
This escaped discussion until, just before Wessler was ready to wrap up his argument for Carpenter, Alito had one last question.
“Is any of this going to do any good” for Carpenter? Alito asked. “Is he going to get anything suppressed?” he asked.
Under the “good faith” exception to the exclusionary rule, even when there’s a Fourth Amendment violation, the evidence won’t necessarily be suppressed if government agents acted in good faith when they committed the violation.
Alito suggested that by acquiring Carpenter’s phone records pursuant to the act, Carpenter won’t be able to show a bad faith violation even if the court finds a warrant is now required for such records.
Carpenter is serving a 116-year sentence.
The case is Carpenter v. United States , U.S., No. 16-402, argued 11/29/17 .
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