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Nov 30 2017   9:24PM GMT

Supremes Hear Arguments on ‘Carpenter’ Cellphone Location Data Case

Sharon Fisher Sharon Fisher Profile: Sharon Fisher


The Supreme Court has begun hearing arguments in the case of Carpenter vs. the United States, which could help determine what sort of data the government could get about you without a warrant.

As you may recall, in 2010 and 2011, two guys in Detroit were accused of robbing electronics stores of cellphones, and the Federal Bureau of Investigation (FBI) used their cellphones to prove that they were nearby a number of the incidents. To do this, the FBI went to the suspects’ cellphone providers and obtained a lot of data about the suspects’ locations – more than 12,000 for one guy, and almost 24,000 for the other guy. The defense attorneys for the guys are saying that the phones revealed so much personal data about the guys that a warrant should have been required for the search. The case is called Carpenter vs. the United States, because one of the guys is named Carpenter, and he was sentenced to 116 years for the robberies.

(An aside – 116 years? For stealing some cellphones, even tens of thousands of dollars’ worth?)

It’s complicated, because it’s all predicated on the third-party doctrine, which states that by giving a third party access to your data – such as giving the phone company the number you’re dialing – you give up protection to that data. That’s all based on a 1979 case called Smith vs. Maryland.

But as time goes on, that becomes more fraught. “I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year,” Justice Sonia Sotomayor wrote in 2012. “I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”

Even the Attorney General who successfully argued Smith is saying its time is past. “This is taking the Smith precedent way too far, in a vastly different technological age,” writes Stephen Sachs in the Washington Post. “When the Supreme Court decided Smith, in the pre-dawn of the digital age, we didn’t know about the Internet, smartphones, cloud computing, Facebook or Twitter. No one involved in the case could foresee the digital revolution that was to come.”

Without changing the third-party doctrine, the future could be even worse. Under that third-party doctrine precedent, the government could have access to all sorts of data collected by the Internet of Things, such as how much beer you have in your fridge and your Fitbit’s data.

Moreover, such electronic surveillance is really cheap, writes Jake Lapperuque in Slate. “It previously cost roughly $250 an hour to track someone on foot and $275 an hour to track them by car,” he writes. “Now, police can track an individual with a GPS tracking device for a mere 36 cents an hour. Cellphone tracking can be as cheap as 4 cents an hour. In the past, resource constraints meant that the government could only track and log the locations and activities of a small group of people. Now it can do so for the entire population.”

“If a warrant isn’t required for the Carpenters of the world, it isn’t required for the rest of us either,” write Matthew B. Kugler and Sarah O. Schrup in the Los Angeles Times. “And the government will remain free to gather far more information about the behaviors and beliefs of its citizens than it should.”

On the good news side, some people had expressed concern about new Supreme Court Justice Neil Gorsuch, appointed by President Donald Trump in April, fearing that his views would be in lockstep with the President’s. But based on his questions earlier this week, he seems to be agreeing that the current system goes too far, though he’s coming at it from a different angle from the other justices: calling it a property right.

Other Justices found other ways to argue the case, with Justice Elena Kagan asking how it differed from putting a GPS on a car – which the court ruled in 2012 required a warrant.

Some Justices also suggested that Congress, not the Supreme Court, should be changing this law if necessary, pointing to examples such as the Stored Communications Act, one of the ways in which the FBI obtained access to the data without a warrant. “Justice Anthony Kennedy strongly suggested that since Congress did pass legislation governing searches like this one, the court should defer to its co-equal branch, writes Nina Totenberg for NPR. “In an area where it’s difficult to draw a line, why shouldn’t we give very significant weight to Congress’ determination, through the Stored Communications Act?” she quotes him as saying.

On the other hand, other justices pointed out, the Stored Communications Act itself is more than 30 years old, it can take Congress a long time to do something, and in the meantime, Americans’ rights would be being violated.

In general, opposition to this third-party doctrine cuts across the political spectrum, with conservative organizations and publications such as Reason, the Federalist, and the Cato Institute also chiming in. That also gave Gorsuch the opportunity to drag the Founding Fathers into it. “John Adams said one of the reasons for the war was the use by the government of third parties to obtain information forced them to help as their snitches and snoops,” he said. “Why—why isn’t this argument exactly what the framers were concerned about?” For his part, Jim Harper in the Federalist one-upped him by citing the 1215 Magna Carta.

The court could go in multiple ways. It could, for example, rule that getting such data without a warrant was ok, but only for a single day, not for weeks as in Carpenter. On the other hand, it was pointed out that  gathering that data for multiple days can actually help prove a person’s innocence by demonstrating that they went to a particular site without being associated with a crime.

The court is expected to rule on the case by June.

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