Supreme Court

Today at SCOTUS: Warrantless Cell Phone Tracking vs. the Fourth Amendment

What's at issue today in Carpenter v. United States.

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Pete Souza / WhiteHouse.gov

Today the U.S. Supreme Court will hear oral arguments in what may prove to be one of the most significant Fourth Amendment cases in years.

The Fourth Amendment, of course, famously guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Yet according to the Supreme Court's 1979 decision in Smith v. Maryland, "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."

Otherwise known as the third-party doctrine, this legal rule has proven quite valuable to law enforcement agencies over the past four decades. Perhaps the police would like to learn the URLs of the websites that someone has visited, or perhaps learn the email addresses that someone has corresponded with? The third-party doctrine lets the police obtain that information without first obtaining a search warrant for it.

But doesn't the idea of granting vast warrantless search powers to the police run afoul of the privacy protections enshrined in the Fourth Amendment?

The Supreme Court will grapple with that question today when it hears oral arguments in Carpenter v. United States. At issue is 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, law enforcement officials identified the cell towers that handled his calls and then proceeded to trace back his whereabouts during the time periods in which his alleged crimes were committed. That information was used against Carpenter in court.

According to Carpenter and his lawyers, "carrying a smartphone, checking for new emails from one's boss, updating the weather forecast, and downloading directions ought not license total surveillance of a person's entire life."

According to the Trump administration, "a cell-phone user has no reasonable expectation of privacy in business records created by his provider documenting the cell sites used to document his calls."

What will the Supreme Court do? Will the justices rework the third-party doctrine, cabin the power of the police, and recognize broad Fourth Amendment protections for the digital age?

At least one member of the Court seems inclined to do just that. As Justice Sonia Sotomayor remarked in the 2012 case of United States v. Jones, "people disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers…. 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."

We'll find out later this term whether or not a majority of the Court shares Sotomayor's welcome view of the Fourth Amendment.

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  1. No reasonable person has any expectation of privacy at any time in any place.

    1. There is nothing unreasonable about it. It’s just precedent that GPS location is available because it’s new. Any reasonable person should expect that no one should know where they’re at if they don’t want to be found.

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  2. according to the Supreme Court’s 1979 decision in Smith v. Maryland, “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”

    That’s why I never use snail-mail.

  3. Our Supreme Court has our most prestigious Constitutional experts. Some of them will find that our Constitution means one thing, the others will find that our Constitution means the opposite thing. Our Constitution is fundamental to all of our laws. Our Constitution can not be understood- even by scholars who have studied it all of their lives. BURN OUR CONSTITUTION, NOW.

    1. I’m not sure if you are being sincere or sarcastic but I think the Constitution is perfectly clear and understandable. You do not have to be a lawyer to understand it. The years and years of adulteration by court rulings have twisted its meaning. Rational, logical semi-intelligent people can read it for themselves and understand it.

      2nd Shall not be infringed
      4th Shall not be violated
      9th Retained by the people
      10th are reserved to the states respectively, or to the people

      The most serious twisting of the Constitution is the commerce clause. They have used the clause as the justification for everything under the sun. Its ridiculous.

  4. Will the justices rework the third-party doctrine, cabin the power of the police, and recognize broad Fourth Amendment protections for the digital age?

    Ha! See, this is the kind of hilarious, deadpan tone other media outlets never use.

  5. This is a very important case. Smith v Maryland and the third party docrtine have to go. In the day and age of the internet and mass personal communication and GPS location, the third party doctrine has become an exception to the 4th Amendment that swallows the rule. What the hell good is the fourth amendment if the government can collect virtually any information they want from cell phone and internet providers without probable cause or a warrant?

  6. What’s more insidious is since the third party doctrine, there has been a maybe increase in mandatory record keeping by third parties. Even if there isn’t a business need to maintain records, the government often requires them to (or pressures them to) creating fresh new things to surveil and peruse.

  7. Dotgov knows that I visit the best porn sites and is tired of blowing their load early while cruising through all the garbage to achieve my electronic nirvana.

  8. So, if “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties” how does that jibe with traditional protections such as doctor/lawyer/spouse confidentiality?

    Would it be possible for a cell phone user to make an agreement with the service provider that information that’s shared with the provider is private and should only be surrendered to a government agency when subpoenaed? Is a service provider forbidden to offer such a feature?

  9. The court will side with the state, since the guy was clearly a criminal. It doesn’t matter that evidence was from the poisoned tree, and our freedoms will be reduced, since it caught a ‘bad guy’ it will stand.

    I can virtually guarantee it.

  10. Calling it now, 8-1 against the 4th amendment.

  11. So, by the government’s logic, if I voluntarily turn over my medical history to my new family physician, I guess I should have no reasonable expectation that it will remain confidential? Total bullshit reasoning. Although I seldom agree with the left-leaning Sotomayor (and am frankly surprised at her comments), I do agree with her in this case.

  12. Something that’s not going to happen in this case, but should, is decoupling privacy from the Fourth Amendment’s restrictions on searches. The pertinent Fourth Amendment questions should be whether some act by a government agent constitutes a search, and then whether or not the particular circumstances of the case make a warrantless search reasonable. Whether the target had a privacy interest implicated shouldn’t be relevant.

  13. Every American cop laughs their ass off every time they hear “fourth amendment”, because they know it’s a bad joke and doesn’t exist.

    Why do we continue to pretend it does?

    1. If it was a bad joke then police wouldn’t get warrants and cases wouldn’t get tossed when cops exceed the dictates of the warrant. You can give up if you want, but I’m not going to.

  14. At a glance the cell phone data appears harmless enough. My problem is will law enforcement be allowed to use bulk data collected as probable cause to get warrants for everyone who’s phone calls bounced off a particular tower on any given day to justify further inquiries such as DNA testing which might end up in some law enforcement data base for “the usual suspects”. Any SCOTUS ruling on this must be specific and very narrowly tailored. The key phrase is “probable cause to get warrants” as opposed to no warrants required.

    1. Cell phone metadata isn’t harmless. No one should have the right to track you around. Not a company, not a person, and certainly not overreaching “authorities”. Warrants are necessary to an extent, but you should have to get one if you are acting as a government official in order to use cell phone data.

  15. This case began in 2011 when the FBI under President Barack Obama, DOJ Attorney General Eric Holder and FBI Director Robert Mueller were running the government’s prosecution system. The author of this article seems hell-bent on making it Trump’s policy when in fact was Obama’s!

    1. and every President before him.

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