Feds Have Friends in Supreme Court Privacy Battle

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By Jordan S. Rubin

The federal government got some help recently from several amicus briefs supporting its position in this U.S. Supreme Court term’s blockbuster search and seizure case.

After over a dozen amicus briefs were filed in August for the criminal defendant, four recent pro-government filings in Carpenter v. United States present the justices with opposing outside viewpoints to help them decide the Fourth Amendment case.

These recent filers include law professor Orin Kerr, whose scholarship has been cited in hundreds of court opinions. Those opinions include United States v. Jones and Riley v. California, the high court’s two most recent decisions grappling with some of the technological and privacy issues presented in Carpenter.

On the other side, fifteen amicus briefs—from law professors, privacy groups, and others—argued that law enforcement needed a warrant to get Timothy Carpenter’s mobile phone location records from his wireless carrier. Law enforcement used the data—known as cell site location information—to show that Carpenter was in the vicinity of several robberies when they occurred. A sixteenth outside brief, from major technology companies, raised similar arguments but claimed to take neither side.

All sixteen briefs took issue with the “third-party doctrine,” which holds that people don’t have a reasonable expectation of privacy in information they voluntarily disclose to third parties, such as when they transmit location data to their carriers. Therefore no warrant is required to get the data from the third party.

The filings on Carpenter’s behalf paint the third-party doctrine as a draconian relic that, left unchecked by the Supreme Court in this case, will have dystopian effects for a society increasingly reliant on mobile phones.

But Kerr’s brief and the other pro-government filings—from several states, a national prosecutor’s group, and a crime victim—defend the third-party doctrine, and they question the factual and legal assumptions of the pro-Carpenter briefs.

The briefs for Carpenter exaggerate the Orwellian repercussions of phone data collection, and they ignore the consequences of the burden a warrant requirement would impose on law enforcement, the pro-government amici say.

Kerr: No Warrant Needed

A professor at George Washington University Law School in Washington, Kerr makes several arguments that a warrant shouldn’t be required for the phone records at issue here.

For one, law enforcement’s collection of such records is “the network equivalent of observations in public space,” his brief said.

“Obtaining historical cell-site records from a cell phone provider is like obtaining testimony from an eyewitness to suspicious conduct,” which doesn’t require a warrant, his brief said.

Another reason a warrant isn’t needed is that legislation like the Stored Communications Act already strikes the proper balance between privacy and security, Kerr’s brief said. “Although cell phone technology expands government power in some ways, it shrinks government power in other ways that Carpenter ignores,” like the rise of encryption and applications like WhatsApp that allow criminals to communicate over their phones in relative secrecy, it said.

The SCA requires the government to show “specific and articulable facts” showing the requested records “are relevant and material to an ongoing criminal investigation.”

Rejecting Carpenter’s argument below that a warrant was required to get his phone records, the U.S. Court of Appeals for the Sixth Circuit said it sufficed that the government obtained the records under the act.

“The Act stakes out a middle ground between full Fourth Amendment protection and no protection at all,” the federal appeals court said. Kerr is cited in the Sixth Circuit opinion.

States, DA Group: Cop Concerns

Several states also filed a brief supporting the federal government. The National District Attorneys Association filed one, too.

“There is nothing troubling about applying the third-party doctrine to uphold the congressionally regulated and judicially supervised” SCA court order “at issue here,” the states’ brief said.

The SCA’s standard—which requires more proof than a subpoena but less proof than a warrant—is an important crime-fighting tool, the law enforcement briefs said.

“If law-enforcement officers must have probable cause to get such records in the first place, many crimes will never be solved,” the states’ brief claimed. Such orders are used to determine, for example, whether a particular suspect merits further investigation, it said.

Plus, information obtained with these court orders can clear innocent suspects, the states said.

The law enforcement briefs also questioned the privacy concerns raised by Carpenter and his supporters.

“While citing statistics from carriers’ transparency reports on the numbers of requests made for” cell site location information, the pro-Carpenter briefs “make no effort to put those absolute numbers in context,” the prosecutors’ brief said.

“For example, Verizon’s 53,532 requests” cited by the Electronic Frontier Foundation‘s brief, “as compared to its more than 142 million subscribers reveals that law enforcement obtains only the tiniest shard of this type of information—less than one-hundredth of a percentage point—hardly the dragnet so frequently alleged,” it said.

“There is no evidence that SCA orders for cell-tower records have ever been abused to the detriment of legitimate privacy interests,” the states’ brief said.

Crime Victim: Keep The Doctrine

“As a crime victim, I have a personal obligation to share my concerns with this Court,” Michael Varco said in his brief filed in support of the government.

Varco wants the justices “to understand how frustrating it has been to observe all the ways that companies track the locations of mobile devices—when users let them do so—only to see none of that information available to help” him, his brief said.

He was the victim of an “unprovoked assault” in Washington in 2016 that badly injured his face and jaw, his brief said. Varco’s experience attempting to get law enforcement to use technology to help find his assailant has prompted his interest in the issues presented in Carpenter.

The march of technology, including the proliferation of ride services and the advent of self-driving cars, cautions against doing away with the third party doctrine, Varco’s brief said.

He recounts the story of the Son of Sam killer who terrorized New York City in the 1970s and was identified in part by police connecting him to a parking ticket for his car.

“What would happen today if the killer went to and from the murders using a ride service instead of his own car?” Varco asks.

“If the third-party doctrine goes away, then a killer like the Son of Sam might use an autonomous car through a ride service to lower his risk of capture,” his brief said.

“Some would like this Court to believe that, due to new technologies in the digital age, an Orwellian state with constant surveillance is imminent,” but Carpenter’s case “does not justify those fears,” it said.

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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