Can You Hear Them Now? Robbers Ask SCOTUS for Phone Privacy

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By Jordan S. Rubin

After getting bad reception on appeal, three armed robbers are looking for better service in a place where mobile phones aren’t even allowed: the U.S. Supreme Court ( Carpenter v. United States, U.S., No. 16-402 , Graham v. United States, U.S., No. 16-6308 , and Jordan v. United States, U.S., No. 16-6694 ).

Their cases represent one of the latest applications of old law to new technology.

The defendants are asking the Justices to impose a burden on law enforcement that currently doesn’t exist: a warrant requirement for historical cell site location information.

Cell site location information, or “CSLI,” shows which cell towers were used to service particular mobile phones. Because it’s usually the closest cell tower that gives a phone its signal, the government can use CSLI to help prove someone used a mobile phone in a given area.

Warrants aren’t needed to get site location data, federal appeals courts across the country have held.

A ruling for the defendants “would mark a sea-change” in Fourth Amendment law, professor Christopher Slobogin, director of Vanderbilt Law School’s Criminal Justice Program, told Bloomberg BNA in an email.

Courts: No Warrant? No Problem

Timothy Carpenter committed armed robberies in and around Detroit. Aaron Graham and Eric Jordan did the same in Baltimore.

All three men were convicted at trial based partly on cell site evidence.

Using court-authorized orders, law enforcement got CSLI from the defendants’ phone carriers to show they were near the robberies when they occurred.

To get a court order, the government needs to show the CSLI requested is “relevant and material to an ongoing criminal investigation.”

Warrants are subject to the more stringent “probable cause” standard.

The government should’ve gotten warrants for location information, not just court orders, the defendants argued on appeal to the federal circuit courts.

But the “third party doctrine” says the Fourth Amendment doesn’t apply to CSLI, so the government doesn’t need a warrant to get it, the Fourth and Sixth circuits held when they affirmed the convictions.

Location information is voluntarily given by mobile phone users to phone companies—the third party—and law enforcement just gets the information from the phone companies, the courts explained.

That means there’s no “reasonable expectation of privacy” in the information voluntarily disclosed.

Such an expectation is required to trigger the Fourth Amendment warrant requirement, the courts said.

Third Party or Fourth Amendment?

The novel question the Supreme Court could examine in the cases is whether getting CSLI from phone carriers counts as a “search” under the Fourth Amendment.

If it does, as the defendants argue, then the Fourth Amendment applies and a warrant is required. If it doesn’t, as the government argues, then the status quo remains and law enforcement can still get CSLI with court orders.

The answer to the “search” question might hinge on whether the CSLI cases are more like two 1970s cases or two cases from this decade.

The Supreme Court upheld the warrantless acquisition of information in two landmark 1970s cases: bank information in U.S. v. Miller and numbers dialed from a landline phone in Smith v. Maryland.

Law enforcement didn’t need warrants, the Supreme Court held in the older cases, because they got the information from third parties: the bank and the phone company.

More recently, the Supreme Court held warrants were needed to search mobile phones of those arrested in Riley v. Californiaand for real-time GPS vehicle tracking in U.S. v. Jones.

The government says the CSLI cases are like the older third party cases. Because CSLI information is given to third party phone companies, the Fourth Amendment doesn’t apply, the government argues.

The defendants say their cases are like the more recent ones that held the Fourth Amendment applies, due to the sheer amount of data and the nature of information CSLI can reveal.

One of the two more recent cases, Riley, “was the first time the Supreme Court explicitly recognized that mobile phones are like computers and homes and thus deserve full Fourth Amendment protection,” Slobogin told Bloomberg BNA.

“The court could build on Riley” in the CSLI cases “and hold that discovering historical location data is like searching the content of a cell phone and thus is a Fourth Amendment search requiring a warrant,” Slobogin said.

But the court “could also decide that location information is in the possession of a third party, and thus is not associated with an expectation of privacy, under the court’s third party doctrine,” which could mean that warrants aren’t needed for CSLI, he said.

Still in Service, for Now at Least

Justice Sonia Sotomayor questioned the validity of the third party doctrine in her concurring opinion in Jones, the case where the Supreme Court held warrants are needed for real-time GPS vehicle tracking.

“[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” she wrote.

Yet, none of the other justices joined Sotomayor’s concurrence in Jones, so the circuit courts in the CSLI cases said they had to apply the third party doctrine.

Additionally, the armed robbers knew they exposed their locations to their phone carriers, the circuit courts said when they upheld the convictions.

But most mobile phone users don’t know they’re disclosing location information, according to a 2016 article published in the Northwestern University Law Review. The author, assistant professor Matthew Tokson of Chase College of Law in Kentucky, relied on survey data to make the point.

That could lead the Supreme Court to hold warrants are necessary for CSLI, Tokson, who clerked for two Supreme Court Justices, told Bloomberg BNA in an email.

Why Hear Them?

The Supreme Court usually takes cases to resolve conflicting opinions in the lower courts.

All of the federal circuits to consider the issue held warrants aren’t needed for CSLI, so there’s nothing for the Supreme Court to resolve, according to the government’s briefs opposing the CSLI petitions.

Yet, there actually is a conflict in the lower courts, at least in terms of their reasoning, the defendants argued to the Supreme Court, in an effort to get their cases heard and convictions overturned.

But if there isn’t a real conflict, why would the Supreme Court think about hearing the CSLI cases?

Chief Justice John G. Roberts may want to provide definitive guidance on the CSLI question, Boston College Law Professor Robert Bloom, who has written about the Fourth Amendment’s application to CSLI, conjectured.

Roberts wrote the opinion in Riley, which set the national standard requiring warrants to search mobile phones of people who are arrested.

What’s the Hold-Up?

The justices considered the petitions of Carpenter, Graham, and Jordan at their regular private conferences over the past few months, but still haven’t decided whether to hear the cases.

Some of the delay might owe to the court’s struggle with “constantly evolving communications technology,” or “the absence of a ninth member,” Slobogin speculated, referring to the recent arrival of Justice Neil M. Gorsuch in April.

Tokson echoed that sentiment, noting that “potentially significant or interesting cases might have been re-listed so that Justice Gorsuch could weigh in on them.”

Or “a justice is drafting a dissent from the denial of cert,” Tokson said, referring to the practice of Supreme Court justices sometimes writing separate opinions to argue why the court should’ve taken a case when the other justices disagree.

Four justices must agree to hear a case, but the vote tally isn’t made public.

The justices will next consider whether to hear the CSLI cases at their May 11 conference.

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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