Supreme Court

Trump Administration Lawyer Pummeled by Sotomayor and Gorsuch in Cellphone Tracking Case

"Most Americans, I think, still want to avoid Big Brother."

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

Fans of the Fourth Amendment got a rare treat today at the U.S. Supreme Court. During oral arguments, both the liberal and conservative sides of the bench delivered a thorough pummeling to the government lawyer charged with defending the practice of warrantless cellphone data collection and tracking.

At issue today in Carpenter v. United States was whether the FBI violated the Fourth Amendment when it obtained, without a search warrant, 127 days' worth of historical cellphone records about a suspected armed robber named Timothy Carpenter. Thanks to those records, the government identified the cell towers that handled Carpenter's calls and then proceeded to trace back his whereabouts during the time periods in which his alleged crimes were committed.

According to Michael R. Dreeben, the deputy solicitor general in President Donald Trump's Department of Justice, this sort of warrantless law enforcement activity is perfectly constitutional.

That stance, however, evidently did not sit well with Justice Sonia Sotomayor, who came out swinging against the government lawyer. "Most Americans, I still think, want to avoid Big Brother," she informed Dreeben. "They want to avoid the concept that government will be able to see and locate you anywhere you are at any point in time."

Sotomayor then suggested that the government's position in the case was at odds with the bedrock protections secured by the Fourth Amendment. "The Constitution protects the rights of people to be secure," she observed. "Isn't it a fundamental concept, don't you think, that that would include the government searching for information about your location every second of the day for months and months at a time?"

Shortly after this drubbing by Sotomayor, Dreeben found himself on the receiving end of a verbal thrashing by Justice Neil Gorsuch. "It seems like your whole argument boils down to if we get it from a third-party [such as a cellular service provider] we're okay, regardless of property interest, regardless of anything else. But how does that fit with the original understanding of the Constitution and writs of assistance?" Gorsuch pressed.

"You know," he told Dreeben, "John Adams said one of the reasons for the war was the use by the government of third parties to obtain information." The British forced those third parties "to help as their snitches and snoops." Why isn't today's warrantless cellphone snooping, Gorsuch demanded, "exactly what the framers were concerned about?"

In other words, after charging the government lawyer with ignoring the original meaning of the Fourth Amendment, Justice Gorsuch then all but accused that lawyer of dishonoring the memory of John Adams. I suspect that today will not go down as Dreeben's all-time favorite day in federal court.

It is never a good idea to try and predict the outcome of a Supreme Court case based on the tenor of the oral arguments. But today's events do at least demonstrate that the Fourth Amendment still has a few fans left on the High Court.

Related: Use a Cellphone, Void the Fourth Amendment?

NEXT: A constitutional right to discriminate?

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  1. How about getting rid of the Big Brother concept altogether?

    1. Just add an amendment to the constitution that all violations of the constitution by government employees become an offense punishable by death.

      Constitutional violations would stop the next day.

      1. They’d just rewrite or ignore that amendment, too.

        1. Yea. Probably.

        2. Constitutional violations by government employees hardest hit.

          Constitutional violations by independent government contractors big winners.

          1. More like “the Supreme Court suddenly discovered that everything the government does is constitutional.”

        1. These are the sorts of arguments that just might get u to a federal bench appointment some day Counselor Reynolds.

      2. Death? Sell them into slavery, along with their families. Nits make lice, after all.

  2. Trump Administration Lawyer Pummeled by Sotomayor and Gorsuch in Cellphone Tracking Case
    To be fair, this is a career bureaucrat who like many bureaucrats thinks more government power is a good thing. He was there before Trump entered office.

    “Michael R. Dreeben (born c. 1954) is the Deputy Solicitor General in charge of the U.S. Department of Justice criminal docket before the United States Supreme Court. He is recognized as an expert in U.S. criminal law. In 2017, he was enlisted by special counsel Robert Mueller to assist the investigation of Russia’s interventions into the 2016 U.S. Presidential election.

    Dreeben has a lengthy career in the Solicitor General’s office, starting as an Assistant in 1988, then promoted to Deputy in 1995. In his first case before the Supreme Court, United States v. Halper (1989), he was opposed by John Roberts, who later became Chief Justice.” – wiki

    In other words, this guy is being portrayed as Trump’s go-to-man for taking away your civil rights. This guy was arguing the position of he and his fellow hacks in government that domestic surveillance is constitutional. The DOJ also said that torture and being held without trial on US soil was constitutional.

    1. Executive branch beauracrats like this guy still work for the present administration & defend its interests. They largely work at the pleasure or the administration. Calling this guy a Trump stooge is just as fair as calling him an Obama stooge a few years ago. He is defending state policies that take away our fundamental freedoms. He is a Kids man and a stooge if whoever the kig happens to be.

    2. Dreeben? The name makes me think of Drebin, as in Fraank Drebin of Police Squad, played by Leslie Nielson. Just a slight spelling variation. Hardly a name that inspires confidence.

    3. He represented Obama before, he represents Trump now.

  3. “It is never a good idea to try and predict the outcome of a Supreme Court case based on the tenor of the oral arguments”
    I can predict which position Gorsuch will take.

    1. Ok which is it, missionary, doggy, reverse cowgirl? I think the suspended congress position seems fitting. Oh wait, were we only talking about oral or ???

  4. Sotomayor is pretty much the strongest Fourth Amendment advocate in the Supreme Court. Very cool to see Gorsuch tag-teaming the government lawyer with her. I have a sneaking suspicion Merrick Garland would be capitulating to government demands in this case. So score one for the good guys.

    1. If Gorsouch goes against this, there is a very good chance of the court striking it down. The only problem might be Keagan. Keagan has never seen a government power that she didn’t like, provided it wasn’t restricting abortion. She is a worse government hack than any of the conservative justices even at their worst. But if Keagan votes with the other three liberals and Gorsouch goes with them, that is a majority. I hold out little hope Roberts, Thomas, Alito or Kennedy will vote against this. Kennedy might if someone convinced him international law supported it or gays somehow benefited, but that doesn’t seem to be happening.

      1. FYI: Elena’s last name is KAGAN, not KEAGAN and Neil’s last name is GORSUCH, not GORSOUCH.

        BTW, did you not read the story where it said that Gorsuch and Sotomayer came out against practice of warrantless cellphone data collection and tracking?

        At least you know where KAGAN stands (or doesn’t stand) with respect to the Constitution. During her confirmation hearings, she continually dodged the question about whether she would adhere to what is written in the Constitution in deciding cases.

    2. “Very cool to see Gorsuch tag-teaming the government lawyer with her.”

      Did someone say Tag Team?

    3. What 4th Amendment? There was such a thing before Prohibition Portia Mabel Willebrandt sashayed it away in the Marron case, just as she got some old men to nullify the 5th Amendment in the Manly Sullivan or Manley Sullivan case. That Sullivan v. US case began with allegations from 1921. I defy anyone to find the original Carolina lower court or Circuit court records for it. But La Suprema always sided with the Wizened Christian Temperance Union, Prohibition Party and Anti-Saloon League until the banking panics of 1929-1932 began affecting their personal fortunes. La Suprema Corte is a child of its time, typically weighing financial pressure and political pressure in a solipsistic bubble rather than the facts of reality. Spoiler votes generate the political pressure they respond to most quickly.

  5. Is Trump now going to fire Gorsuch?

    1. If Trump could fire Supreme Court justices then RBG, Sotomayor, Kagan, Breyer, Roberts, and Kennedy would be fired.

  6. Stop what you’re doing right now and watch these eggheads totally DESTROY this bully. Also, when does the court remember the Fourth Amendment exists? It seems haphazardly.

  7. I want to avoid Big Brother too, Justice Sotomayor. But I have a GPS signal coming from my phone 24/7 in case I need help in an emergency. In other words, I am being tracked all the time. The issue is not the tracking, but the purpose. As usual, you miss the point of the case.

    1. @LGDaub It’s one thing to track you in real time to know your current location, in case you require help in an emergency. It’s a whole different story for them to store your location data every second of every day for weeks or months, or even years. To what end do they need that data, other than in the event that you may at some point be accused of a crime and the government wants your phone location data? It is the ultimate in big brother spying.

      The vast majority of Americans don’t commit theses crimes yet we are targeted for the same tracking as if we all WILL be criminals.

  8. Most Americans, I still think, want to avoid Big Brother,

    That’s the nice thing about the ‘reasonableness’ standard – eventually ‘most American’ won’t expect to be able to do that and it will be perfectly within the realm of the ‘reasonable expectation’ that the government monitors you all the time.

    “It seems like your whole argument boils down to if we get it from a third-party [such as a cellular service provider] we’re okay, regardless of property interest . . .

    So, we’ll be overturning Third Party Doctrine any day now, right Gorsuch? Because, from my understanding of this – yes. Yes, if you get it from a third party such as a cellular service then we’re okay, regardless of property interest.

    1. So, we’ll be overturning Third Party Doctrine any day now

      One can dream.

    2. Believe it or not, Sotomayor is at the forefront of questioning the third party doctrine. She wrote a solo concurring opinion in U.S. vs Jones, “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.”

      She’s been a pleasant surprise on some civil rights issues. Especially compared to Kagan, who shreds a copy of the Constitution every morning after waking up.

    3. Reasonableness in 1933 was defined as what “most Germans” think is cool, and not everyone agrees that that led to a good outcome. And “third party doctrine” in Amerika means dissing extremist outliers such as the Libertarian Party as unreasonable by definition! After all, the 1971 Nixon doctrine shunting tax money to advertisers for “both” entrenched looter parties makes that a fait accompli to vidiots whose telescreen input is pablum-strained by the FCC.

  9. “But how does that fit with the original understanding of the Constitution and writs of assistance?” Gorsuch pressed. “You know,” he told Dreeben, “John Adams said one of the reasons for the war was the use by the government of third parties to obtain information.”

    Wow. Does Gorsuch have a Gadsden flag on his car?

    1. Careful now… “Original understanding” is about the Constitution that forced us to help capture and return fugitive slaves, and contained no 14th Amendment “All persons born” verbiage recognizing that a woman is an individual with rights even when pregnant. When conservatives start mouthing “original intent” they mean before Patrick Henry insisted on a Bill of Rights. What they have in mind are ducking chairs, stocks, flagellation and stonings.

  10. bedrock protections secured by the Fourth Amendment

    Good one!

  11. “They want to avoid the concept that government will be able to see and locate you anywhere you are at any point in time.”

    “Oh, very well. We’ll strip out every other data point.”

    1. They, along with hackers and organized crime, are going to be able to do it regardless of what the Court says. The ruling can’t make the technology disappear. The only difference would be that LEAs would have to come up with a different explanation for how they found you.

      1. “They, along with hackers and organized crime, are going to be able to do it regardless of what the Court says. The ruling can’t make the technology disappear. The only difference would be that LEAs would have to come up with a different explanation for how they found you.”

        So, you’re happy so long as they come up with some lame excuse? Why do I not find that surprising?

  12. Remember when Gorsuch was going to be a lockstep Trump stooge? Pepperidge Farm remembers.

  13. Tell me which part of the Fourth Amendment forbids what the FBI did. The actual text, not your fevered emotions about “Big Brother”.

    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.

    Cell phone signals are not persons, houses, papers, or effects. They’re not even technological extensions of those things. You’re broadcasting that shit to the world, including hackers, org crime, etc, who can just as easily use stingray technology to intercept it. If you’re really that concerned about your privacy you would (a) use a wireless carrier that secures their signal to prevent spoofing, or (b) turn your phone off when you’re not using it.

    If you want the court to bar law enforcement from doing this just because you don’t like it, regardless of the Constitutional text, then you lose all credibility to complain about the big govt Left or big govt Right issuing decisions based on their politics rather than the Constitution.

    1. “Tell me which part of the Fourth Amendment forbids what the FBI did. The actual text, not your fevered emotions about “Big Brother”.”
      Me, first, asshole:

      “Cell phone signals are not persons, houses, papers, or effects.”
      Yes they are.
      See how easy that was? It takes a certain sort of imbecile to claim cell phones are not the “effects” of a citizen, and you are that sort of imbecile.

      1. Good answer. Saying that “Cell phone signals are not persons, houses, papers, or effects” is equivalent to saying that emails are not “papers or effects” either.

    2. How the fuck are they NOT effects?

    3. They are the effects of the service provider, as per contract. Should the company also contract not to provide the data to LEOs without a warrant (or for any other reason they pull out of their ass), the government can pound fucking sand until they obtain a warrant specifying the place to be searched, and the persons or things to be seized.

      1. I purchased my cellphone outright, from [not my cellphone provider]. It was never the property of my cellphone provider [using T-Mobile phone on AT&T network]. How is this device suddenly become an effect of my cellphone provider?

        1. It’s not the device, but rather the communication with the service provider that is in question. The ownership of the phone is irrelevant

    4. Data taken from you, about your location can easily be construed as your personal possession, in other words, your personal effects.

      1. That is not accurate. The data isn’t taken from the individual, but from the service provider. The individual cellphone user freely provided that data to the service provider.
        The details of the contract should clarify what is protected and what is not. Users should be well aware which service provided will protect them and which won’t, because ultimately the provider owns the data.

  14. Amazing. Sotomayer actually took a Constitutional approach to this issue – something that Kagan would definitely not do based on her evasion of the question during her confirmation hearings.

  15. But the government will never, ever try anything funny with self-driving cars

  16. Poor reporting. Only one side of the issue is given voice.

    1. Oh, no, not really. You are here. We are waiting in breathless anticipation for your logical, well-reasoned counter-argument.

  17. “…Michael R. Dreeben, the deputy solicitor general in President Donald Trump’s Department of Justice.”

    You state this as if he was appointed to the Solictor General’s office by Trump in 2017. In fact, Dreeben has been employed by the Office of Solicitor General since 1988, and has argued over 100 cases before SCOTUS in behalf of the government.

    1. At the present time it’s President Donald Trump’s Department of Justice. Government lawyers don’t argue cases without the support of the government.

  18. In the 1927 case upholding conviction of Roy Olmstead et alii for conspiracy to move 0.5% or more of ethanol content in liquids the godly 9th Circuit proclaimed: “A person using the telegraph or telephone is not broadcasting to the world.” I suspect this is the basis for today’s warrantless tapping of wireless home phones and cellphones. Lucky for the defendant the case before theironners involves a fellow looter. The boot would come down hard if this were a callgirl trying to raise money for her mom’s gallstone operation by a government-licensed cartel physician, or a hippie selling off his mescalin stash to pay tax arrearage.

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