Justices Probe Digital Privacy Boundaries on Cellphone Searches
Several Supreme Court justices voiced concern Wednesday during oral argument in Carpenter v. U.S. (see 1711280046) about how to ensure privacy protections in an era of advanced surveillance technologies. Justices seemed divided on what boundaries to set for government searches of cellphone location information. The case challenges the legality of the government’s search of convicted criminal Timothy Carpenter’s cellphone location information in several robberies. Representing Carpenter, American Civil Liberties Union attorney Nathan Freed Wessler said “warrantless collection” of 127 days of Carpenter’s information was illegal. Deputy Solicitor General Michael Dreeben said court precedent supports the government.
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Under the court’s long-established third-party doctrine, government access of cellsite location records doesn’t violate the Fourth Amendment, Dreeben said. Cellphone companies are merely “witnesses” that produce business records of customer transactions, which people willingly provide when they sign up for service, he said. Several justices took issue with this position, raising questions especially about records extending over several days or weeks, and customer awareness of the how data is protected from government surveillance.
“The Constitution has always said the government can’t intrude, except in some carefully defined situation, ... on those privacy interests without a warrant,” said Justice Sonia Sotomayor. Justice Elena Kagan said the government is ignoring the “lack of voluntariness on the individual’s part in terms of conveying information to a third party.” Chief Justice John Roberts said the government’s reasoning seems “inconsistent” with the court’s ruling in 2014 Riley v. California, “which emphasized that you really don’t have a choice” in how data is collected and stored if a person wants to use a cellphone.
“It seems to me if there’s going to be protection extended to the information, it has to involve some compromise of the third-party doctrine,” Roberts said. “What is the line we are drawing?” he asked. “It seems to me the line is between information to which the authorities have access and information to which they don’t,” he said, saying a time frame may not matter. Government never has had the ability to go back and do comprehensive location searches of everyone who happened to be in a vicinity, which might argue against setting a specific time limit, Roberts said.
“The court has fully recognized how sensitive the 127 days of location information was,” Center for Democracy and Technology attorney Greg Nojeim told us. The court’s "challenge will be how to measure the sensitivity of data in public transactions,” he said.
Wessler said a warrant is needed to collect location information over a long period, challenging government reliance upon third-party legal doctrine established in 1979's Smith v. Maryland. “What is the rule you want us to adopt?” asked Justice Anthony Kennedy. Wessler has suggested 24 hours but told Kennedy the court might find "other reasonable ways” to draw a bright line warrant requirement.
Several justices asked about the role new technologies play in whether the court needs to update privacy standards. “I am not beyond the belief that someday a provider could turn on my cellphone and listen to my conversations,” said Sotomayor. New technologies raise “very serious privacy concerns,” said Justice Samuel Alito, asking how much existing court precedent should be declared “obsolete.” Do people understand how much data they're giving away that the government could access with a court order? Alito asked. Wessler said the court shouldn’t hinge constitutional protections on the “happenstance” of cellphone provider contracts. A warrant should be required if there's a reasonable expectation of privacy in these records, he said.
Kennedy and Justice Ruth Bader Ginsburg asked questions about whether setting a time frame is workable. A longer term could indicate innocence -- a person simply could be shopping in the same area where a series of crimes were committed, Kennedy said. Sotomayor explored “dragnet” versus “incident-related” searches. “If police have cause to believe a crime has been committed, can they ask for records” over any length of time, she asked, questioning the workability of a 24-hour rule.
Justice Neil Gorsuch questioned whether it’s acceptable for the government to obtain information from a third party. “How does that fit with the original understanding of the Constitution?” he asked, citing John Adams’ premise that one of the causes of the Revolutionary War was the government’s use of third parties to obtain information forcing them to act as “snitches and snoops.”