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Adam Liptak reports in the NYT. The case is
Carpenter v. United States.
“We hold only that a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party,” the chief justice wrote. The court’s four more liberal justices joined his opinion....
Mr. Carpenter’s lawyers said cellphone companies had turned over 127 days of records that placed his phone at 12,898 locations, based on information from cellphone towers. The records disclosed whether he had slept at home on given nights and whether he attended his usual church on Sunday mornings....
Technology companies including Apple, Facebook and Google filed a brief urging the Supreme Court to continue to bring Fourth Amendment law into the modern era. “No constitutional doctrine should presume,” the brief said, “that consumers assume the risk of warrantless government surveillance simply by using technologies that are beneficial and increasingly integrated into modern life.”
AND:
From SCOTUSblog:
Here’s the limiting language from the majority opinion in Carpenter:
Our decision today is a narrow one. We do not express a view on matters not before us: real-time CSLI or “tower dumps” (a download of information on all the devices that connected to a particular cell site during a particular interval). We do not disturb the application of Smith and Miller or call into question conventional surveillance techniques and tools, such as security cameras. Nor do we address other business records that might incidentally reveal location information. Further, our opinion does not consider other collection techniques involving foreign affairs or national security. As Justice Frankfurter noted when considering new innovations in airplanes and radios, the Court must tread carefully in such cases, to ensure that we do not “embarrass the future.” Northwest Airlines, Inc. v. Minnesota, 322 U. S. 292, 300 (1944)
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21 comments:
The 5 = Chief Justice John Roberts, joined by the court’s four liberals.
As rock-ribbed conservative as the best in this country, but I'm on the side of these five.
Thomas did a very nice dissent. He points out very simply that this wasn't a Fourth Amendment search of the defendant's property. It was a request for the production of Sprint's property. The phone records belong to Sprint. The defendant doesn't own them, or maintain them, and cannot dispose of them if he wanted to.
Kennedy's dissent is also quite good; why does it always take him so many pages? I suppose Kennedy goes on so long because he wants to point out all the ways that the majority decision is going to lead to much more Fourth Amendment litigation.
I remember this crime spree involving Radio Shack stores in Michigan and Ohio. Law enforcement nailed this crime ring because they got the records.
the Stored Communications Act, does require prosecutors to go to court to obtain tracking data, but the showing they must make under the law is not probable cause, the standard for a warrant. Instead, they must demonstrate only that there were “specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.”
So I assume this ruling effectively abrogates this "Stored Communications Act" thing?
"the Court must tread carefully in such cases, to ensure that we do not “embarrass the future.”"
Good to know libs are on board with this. Surely they wouldn't want to outlaw the death penalty or gun ownership when technical innovations can improve both?
I am wondering if GDPR would restrict the cell phone companies (in Europe) from collecting such information. They could still "clean" it so that they could use the data for network quality purposes but render it anonymous.
I'm a fan of preventing the gov't from this info. I suspect this was bad law though.
-XC
I'm with Scalia: I've never understood why conservatives line up with the government against our Fourth Amendment rights.
I like this decision, but it is the rare decision where I think both the majority and minority positions have logical coherence. Thomas is correct- the records are more accurately described as the cell companies' property rather than the cell phone user's property. However, this point also applies to social media information, and this is why I favor Robert's interpretation. I just think it important to start drawing some lines over which the 4th Amendment still matters in the information age.
I guess if I had make my own argument- the records belong to both the user and the company, thus the 4th Amendment still applies.
One problem with analysis in this area is drawing lines on what is a reasonable expectation of privacy. I bet folks on this site would be all over the place going over judicial applications of this concept over the past 40 years.
I still remember being shocked when I litigated this area 30 years ago and found out there was no privacy interest in phone bills.
It's a good decision. While technology helps solve crimes it is the biggest single threat to our privacy and, ultimately, to our freedom. And, unlike with the FISA court, one shouldn't expect 99.7% approval without some investigation into why.
The decision essentially says that 127 days of phone location records were obtained and it’s an invasion of expected privacy. The court said that was too long, and sort of set the limit to 6 days, maybe. The headlines will be widely misinterpreted both ways, and other ways. It’s going to be interesting to see a short explanation of how this applies to future law enforcement investigations.
Maybe it says law enforcement can check to see if you were here or there at some time using existing databases. But it can’t follow you 127 days.
Small government conservatives my ass.
There is no constituency for small limited government. Both liberals and conservatives agree on big intrusive government. They just disagree on where the government should intrude.
This just another ruling in 230 years of not expanding individual rights but certifying unlimited government power. It merely says the government has to follow the process. Follow the process and the government gets the records. The only change is the time required to get a warrant. And how many warrants get turned down in a year.? Almost none.
SCOTUSblog link is broken.
Gorsuch's dissent is interesting. In it he says that the defendant could have made an argument that in fact the cell phone location data was his property, not the phone company's, and he points to federal law to make the argument. If you're interested, go read his dissent. He makes the property case near the end of his dissent.
What I find kind of interesting about the property approach is that it seems that Congress can decide whose property the records (or rather the data in those records) are, and that determination then governs whether or not the Fourth Amendment applies. As you can probably tell, I'm not a lawyer, so I'm asking some of you who are: Is this a common scenario? It would seem that in such cases, the Congress can, in effect, decide what the Constitution says.
At one point in his dissent, Gorsuch points out the arbitrariness of the majority's seven-day rule:
But then it tells us that access to seven days’ worth of information does trigger Fourth Amendment scrutiny—even though here the carrier “produced only two days of records.” Ante, at 11, n. 3. Why is the relevant fact the seven days of information the government asked for instead of the two days of information the government actually saw? Why seven days instead of ten or three or one?
All I could think of is that the majority got the number wrong, for as every civilized person here will recall the reading from the Book of Armaments:
"then shalt thou count to three, no more, no less. Three shall be the number thou shalt count, and the number of the counting shall be three. Four shalt thou not count, neither count thou two, excepting that thou then proceed to three. Five is right out."
Is it odd that I always look forward to reading the concurrences or dissents written by Clarence Thomas? In this case I'm in favor of the majority's outcome, but Thomas makes a strong case that the court made interpreting the 4th Amendment in a modern context even more of a muddle than it was.
Scalia did the same thing as Althouse quotes here, about the question before the court. In Heller v DC Scalia wrote that the narrow question before the Court, the constitutionality of a handgun ban in a federal enclave, did not touch on the constitutionality of any other firearm regulation, the Left immediately re-read that bit of boilerplate as "ALL existing gun laws are constitutional, because Scalia said so."
So hey, because this ruling only addressed one specific type of technological data grab, I bet the press, the police, and the rest of the government will therefore do the same as was done with Heller: assume all other data grabs are constitutional, because the Court didn't say they weren't.
Of such willful misreading of law is tyranny born.
Tyranny is born of Republican leaders staying silent when POTUS calls out negative news coverage of the Singapore summit as treasonous.
Does agreeing with Roberts, et al make me a liberal?
All the government needs to do is post an appropriate opt-in add on the users phone they want to track.
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