Supreme Court

Why SCOTUS Should Tell the Government to 'Get a Warrant' in Cellphone Location Data Case

The third-party doctrine is at odds with the Fourth Amendment.

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The Fourth Amendment to the U.S. Constitution famously guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Yet in 1979 the U.S. Supreme Court held that law enforcement officials do not need a search warrant to get a suspect's telephone call records from a phone company. "A person has no legitimate expectation of privacy in information he voluntarily turns over to third parties," the Court ruled in Smith v. Maryland.

Otherwise known as the "third-party doctrine," this legal rule raises profound and troubling questions in the age of the smartphone. Nowadays we share all sorts of personal information with third parties, such as the numbers we dial and text, the URLs we visit, the email addresses we correspond with—even the physical locations from which we access our devices. Does it make any sense to exclude so much meaningful and highly sensitive private information from the "papers" and "effects" entitled to Fourth Amendment protections?

This fall the U.S. Supreme Court will have the opportunity to give the third-party doctrine a second look when it hears oral arguments in the case of Carpenter v. United States. At issue is whether the FBI violated the Fourth Amendment when it obtained, without a search warrant, the historical cellphone call and location records of several suspected armed robbers. Federal agents used those records to identify the cell towers that handled the suspects calls during the time periods in which the robberies occurred. The government then traced back the suspects' movements and linked their whereabouts to their alleged crimes.

How should the Court approach this case? In an amicus brief filed last week, the Cato Institute, the Competitive Enterprise Institute, the Committee for Justice, and the Reason Foundation (the nonprofit that publishes this website) offer a piece of eminently sound constitutional advice: "This Court should apply the terms of the Fourth Amendment in all Fourth Amendment cases."

What that means in practice, the brief explains, is that "the government's compulsory acquisition of data in this case was a seizure. Processing the data to make it human-readable was a search….Thus, it was unreasonable to seize and search the data without a warrant. Lacking exigency or other excuse, the government should have got one."

"Get a warrant" is the perfect message for the Supreme Court to tell the government in this case.

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  1. We all know what they “should” do. What will they actually do? I suspect deference will be the word of the day.

  2. Use a burner phone for things you don’t want the government to see.

    http://www.wired.com/2017/02/7…..er-phones/

    1. I don’t think you can get the service turned on without proving to the phone co. your identity

      1. Unless things changed you used to be able to. You can just buy a phone card and put minutes on it.

        1. Hmm. I’m pretty sure that to get the phone turned on and get a number when you first get the phone, the phone company makes you verify who you are. Maybe I’m wrong, but I worked at a store for a little while that sold them, and I remember helping some guy set up his phone, and I seem to remember the same kinds of questions that you would answer to verify it was you that you would answer for a credit check.

  3. “A person has no legitimate expectation of privacy in information he voluntarily turns over to third parties,” the Court ruled in Smith v. Maryland.

    And the telephone company is just an evil corporation so they have no privacy rights.

  4. Joe has secret info that he tells Mary. Mary tells Sue, a third party. The government can now order Sue to divulge the secret info without a warrant because now Joe has no legitimate expectation of privacy. Third party, you see.

    1. Sorry, maybe this is a better analogy to fit with search and seizure.

      Joe has a secret that he tells Mary via letter dictated to his secretary, Sue, who makes a photocopy and seals it in a safe. Because Sue is a third party, now there is no warrant required to enter the safe and seize the copy of the letter.

      1. More like – Joe has a secret that he tells Mary via a sealed letter he hands over to Sue who then writes down all the details of when he handed it to her, who it was sent to, when it was delivered, what Mary gave back to her, and so on. Then stored all that information in a notebook in a safe (along with the same information for everyone who works with Joe, Mary, or in any building within a 5-mile radius).

  5. I guess I was surprised to read they had the imagination and skills to pull it altogether and make a bust.

  6. Why SCOTUS Should Tell the Government ‘Get a Warrant’ in Cell Phone Location Data Case
    Because the 4th Amendment protects persons to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    In other words, the 4th just does not cover things only in your home but papers and effects.

    Its supposed to be hard for government to obtain information about you for criminal investigation purposes. Should work as designed.

    1. I feel like you don’t appreciate how hard things are for cops.

      1. I feel like dogs should fall within effects.

        1. Let’s not bring dogs into this. That’s just gonna lead to a shooting.

  7. Lacking exigency

    Hot pursuit!

  8. “Get a warrant” is the perfect message for the Supreme Court to tell the government in this case.

    I won’t be holding my breathe that they’ll actually rule that way.

  9. RE: Why SCOTUS Should Tell the Government ‘Get a Warrant’ in Cell Phone Location Data Case
    The third-party doctrine is at odds with the Fourth Amendment.

    Warrant?
    We don’t need no stinking warrant.
    We’ve got badges!

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