Supreme Court

In Warrantless Cellphone Search Case, It's the Trump Administration vs. the 4th Amendment

The Supreme Court will arguments in Carpenter v. U.S. in the coming term.

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Fred Schilling, Collection of the Supreme Court of the United States

The U.S. Supreme Court will hear oral arguments sometime in its coming term in one of the most significant Fourth Amendment cases in years.

At issue in Carpenter v. United States is the question of whether the FBI violated the Fourth Amendment when it obtained, without a search warrant, the cellphone records of suspected armed robber Timothy Carpenter. With those records, federal officials identified the cell towers that handled the suspect's calls and then proceeded to trace back his whereabouts during the time periods in which his alleged crimes were committed. That information was later used against Carpenter in court.

The Trump administration strongly urged the Supreme Court not to hear this case. Why? Because "a person has no Fourth Amendment interest in records created by a communications-service provider in the ordinary course of business that pertain to the individual's transactions with the service provider," the administration told the Court in its brief in opposition to the petition for certiorari.

What is more, the administration argued, "the acquisition of a business's records does not constitute a Fourth Amendment 'search' of an individual customer even when the records reflect information pertaining to that customer."

This cramped view of the Fourth Amendment is extremely dangerous to the privacy rights of all Americans in the age of the smart phone. As the Supreme Court recognized in the 2014 case of Riley v. California, in which the Court unanimously told the police to "get a warrant" before searching cellphones incident to arrest, "modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans 'the privacies of life.' The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought."

Consider the sort of information a typical cellphone user shares with a cellphone company. It is much more than just numbers dialed or texted; it includes email addresses of correspondents, the URLs of websites visited, and, of course, the physical locations from which the device itself was accessed. Shouldn't the Fourth Amendment offer some genuine protection for such highly personal private information?

As a back-up argument, the Trump administration claims that even if the Fourth Amendment is held to apply to the cell-site information at issue in this case, the government's actions against Carpenter should still be ruled constitutional on the grounds that they are a "reasonable" exception to the normal requirements of the Fourth Amendment.

"Society has a strong interest in both promptly apprehending criminals and exonerating innocent suspects as early as possible during an investigation," the Trump administration argued. According to the government, in other words, it takes too long and causes too much hassle for law enforcement officials to bother getting a search warrant in cases like this.

But that view turns the Fourth Amendment on its head. One of the main purposes of the Fourth Amendment—as well as other guarantees in the Bill of Rights—is to restrain overzealous government agents before they run roughshod over the rights of individuals. The Trump administration, by contrast, wants to loosen such constitutional restrictions on the cops.

It is a heartening sign that the Supreme Court agreed to hear this important case over the objections of the Trump administration. Hopefully the Court will ultimately reject the administration's disfiguring interpretations and issue a decision that gives the Fourth Amendment its due.

Related: Use a Cellphone, Void the Fourth Amendment?

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  1. Save us, Wise Latina!

  2. The Trump administration strongly urged the Supreme Court not to hear this case.

    In Reason stories before this year it was always “the Justice department vs. the Bill of Rights”, if only the Barack Obama Administration knew!

    1. It is Trump’s baby now!

      Geez, SIV it is as if you don’t know that Democrats are good on civil rights.

    2. Go back and check. I recall lots of stories where “the Obama administration” did this and “the Obama administration” did that. So sorry about your selective memory.

      1. Look at SCOTUS and Fourth Amendment tagged stories, especially authored by Damon Root. I didn’t look at them all but a quick survey showed “Justice Department” and “government lawyer” were the norm, I didn’t see “the Obama Administration” arguing any cases.

        1. I agree. Too many “Trump administration” references in this article. No mention of who is actually arguing this case. Is it the FBI or the Justice Department or who exactly. Doesn’t the “Trump administration” include all in the Executive branch. Doubtful that everyone holds the same viewpoint in this matter. This article seems to reveal the author’s animus toward the “Trump administration” – by implication, his animus toward DJT.

          1. the fbi doesn’t argue cases.

  3. as much as i don’t like it, it is well established that persons have no privacy interests in things they tell other people. this is the “false friends” doctrine, which allows an informant to wear a wire when talking confidentially with a suspect. Riley, the case about actually searching the cellphone, is not dispositive here. that was a direct search of the “effects” of the suspect without probable cause. the 4th amendment by the way, prohibits “unreasonable searches” of “persons, houses, papers, and effects.”

  4. Which part of the Fourth Amendment is supposedly being violated in this case? Not what you would like it to mean, but what it actually says.

    The right of the people 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.

    Has nothing to do with warrants, so must be the first part. Cell phone location records aren’t persons, houses, or effects. It could be argued that they fall under the 21st century extension of “papers”, but these records were never in the possession of the phone user — they originated in the cell provider’s system. They’re even less applicable than emails, which were at least written by the person.

    1. effects
      [ih-fekts]
      goods; movables; personal property.

      Cell records are “goods” to the phone companies as they sell the information to other companies.

      “Papers” would also apply since these cell phone records are generated by the person that the government seeks. In other words, phone companies would never have this information without the party’s use of a cell phone.

      The easy solution is for police to get a warrant based upon probable cause but they just refuse to do this, so screw the government and the default should protect The People.

      1. Cell records are “goods” to the phone companies as they sell the information to other companies.

        But not goods to the cell phone user, who is the party that matters.

        “Papers” would also apply since these cell phone records are generated by the person that the government seeks. In other words, phone companies would never have this information without the party’s use of a cell phone.

        No, they aren’t. They are generated by the cell towers. By your logic, third party security camera and even police dashcam footage are the “papers” of every person who appears in the video.

        1. I actually think the government should need warrants to get any information (yes, even third party security camera footage) from third parties at all. Nothing else is workable in the 21st century. This is a limitation on the government, and a perfectly fine one at that.

    2. So all you have to do to escape this is live in the middle of nowhere and never give any of your information to any corporations. Sounds like a pleasant and viable society, doesn’t it? No. The “third party doctrine” needs to be scrapped, because anyone who isn’t severely ignorant about technology knows that it is 100% unworkable and makes the fourth amendment essentially useless. We can place any limitations we want on the government, and I certainly don’t want governments and corporations colluding to violate our privacy and anonymity.

  5. As the Supreme Court recognized in the 2014 case of Riley v. California, in which the Court unanimously told the police to “get a warrant” before searching cellphones incident to arrest, “modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”

    Apples and oranges. That’s a search of the phone — obviously it can run afoul of the 4th amendment if done without a warrant. Getting cell location records is the 21st century equivalent of asking around to find someone who saw the person at a certain time, which is not a 4th amendment matter.

  6. Can a detective legally ask someone about your whereabouts at some point in time? How is this really any different?

    1. You don’t have to answer. The government wants no choice to answer and people/companies to be forced to fork-over the cell records.

      1. Wrong. If the prosecutor thinks you have information relevant to a crime, they can force you to testify. That’s what “subpoena” means. There is no 5th amendment protection against incriminating someone else.

  7. The “reasonableness” argument might turn on whether the government asked specifically for Carpenter’s records, or asked for all customers’ records (withing certain time and location parameters) in order to conduct a “fishing expedition” to bring up one or more names of potentially innocent people for investigation.

  8. The “reasonable expectation of privacy” phrase has ruined the 4A. It was originally a throwaway line in a concurring opinion that got picked up in a later case (a drug war case, go figure) and now we have this insanity enshrined in common parlance. It entirely destroys the (traditional) Law of Agency and/or Bailment. Of course you have an expectation of privacy in things – anything: records, paper, effects – that you entrust to an Agent. The clowns above who say this has nothing to do with the 4A or you have no rights should get their law school tuition back. Oh, and try reading Justice Black’s dissent re: “privacy.” He saw this coming.

    1. Of course you have an expectation of privacy in things – anything: records, paper, effects – that you entrust to an Agent.

      So you wouldn’t mind handing over your SSN, DOB, mother’s maiden name, medical history, credit card numbers and PINs, etc to everyone you make a transaction with every day?

      No? Well then you don’t actually have an “expectation of privacy in anything”, do you?

  9. “The Trump administration strongly urged the Supreme Court not to hear this case”
    And the Obama Administration argued that too. Come on Damon, let’s be fair about the facts of the government’s case here.

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