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Justices Alito and Gorsuch Clash Over Cellphones, Privacy, and Property Rights

Oral arguments in Carpenter v. U.S. reveal a division between two conservative justices.

Fred Schilling, Collection of the Supreme Court of the United StatesFred Schilling, Collection of the Supreme Court of the United StatesIt's common to think of the U.S. Supreme Court in terms of liberal vs. conservative decisions, liberal vs. conservative doctrines, and liberal vs. conservative justices. But in the recent oral arguments in Carpenter v. United States, one of the biggest disagreements occurred between two of the Court's conservative members, Samuel Alito and Neil Gorsuch.

At issue in Carpenter v. U.S. is whether federal law enforcement officials violated the Fourth Amendment by acquiring the cellphone phone records of a suspected armed robber, Timothy Carpenter, without first obtaining a search warrant for those records. Thanks to the information they obtained, federal investigators were able to trace back Carpenter's whereabouts during the time periods when several of his alleged crimes were committed, placing him in the vicinity of those crimes. That information was used against Carpenter in court.

The government insists that this warrantless search did not violate Carpenter's Fourth Amendment rights because, in the words of the Supreme Court's 1979 ruling in Smith v. Maryland, "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." In other words, Carpenter has no Fourth Amendment right to privacy in his cellphone records because he voluntarily used his cellphone, thus voluntarily disclosing his location to the various cellphone towers that handled his calls.

Throughout the November 29 oral arguments, Justice Alito was perhaps the most supportive of the government's position and the most critical of Carpenter's arguments. Justice Gorsuch, on the other hand, seemed extremely skeptical of the government's stance. Gorsuch even suggested at one point that the government's position was at odds with the "original understanding of the Constitution"—not exactly a compliment, since Gorsuch is a self-professed originalist.

But the real clash occurred after Gorsuch asked Deputy Solicitor General Michael Dreeben to set aside the "third party" aspect of the debate and focus instead on whether the Fourth Amendment's protection against unreasonable searches of a person's "papers and effects" should apply to the sort of digital information at issue here.

"Let's say I have a property right" in my cellphone records, Gorsuch began. "Wouldn't that" make the government's actions "a search of my paper or effect under the property-based approach" to the Fourth Amendment?

Dreeben thought not. "It's not your paper or effect," he said. "The problem with your hypothetical," he told Gorsuch, "is that it creates a property interest out of transfers of information."

Gorsuch tried again. "Under my hypothetical, you have a property right in this information." So, "would it be a search of my paper or effect" for the government to obtain the information, he asked the deputy solicitor general. "Yes or no."

"I am not sure," Dreeben replied. "And the reason that I am not sure is there has never been a property right recognized in information that's conveyed to a business of this character." In fact, Dreeben went on to add, "it's a property right that resembles no property right that's existed."

At this point, Justice Alito entered the conversation. His intervention can best be described as throwing a lifeline to Dreeben while at the same time trying to quash Gorsuch's entire line of questioning.

"Yeah, Mr. Dreeben, along those lines," Alito said, "I was trying to think of an example of a situation in which a person would have a property right in information that the person doesn't ask a third party to create, the person can't force the third party to create it or gather it. The person can't prevent the company from gathering it. The person can't force the company to destroy it. The person can't prevent the company from destroying it."

Dreeben followed Alito's lead. "Justice Alito, those are a lot of good reasons on why this should not be recognized as a property interest," he promptly replied. "I can't think of anything that would be characterized as a property interest with those traits. And it would be a—really a watershed change in the law to treat transferred information as property."

But Gorsuch would not be deterred by Alito. Doesn't the Stored Communications Act, Gorsuch asked, "declare this customer proprietary information?" Are you saying "the government can acknowledge a property right but then strip it of any Fourth Amendment protection? Is that the government's position?"

While Dreeben was still responding to that query, Alito stepped back in again with an answer of his own. "Mr. Dreeben," Alito said, "I would read the—the—the phrase 'customer proprietary information' to mean that it is proprietary to the cellphone company and, is therefore, not to the customer. It's customer information, but it's proprietary information about the cellphone company because, if you got that information in the aggregate, you could tell a lot about the company's operation."

In short, Gorsuch proffered a property rights argument that might allow Carpenter to win the case, and Alito came out swinging hard against it.

We'll find out later this term whether the two conservative justices continue their disagreement via written opinion.

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  • ||

    To the surprise of actually no one who has a real understanding of each jurist's philosophical groundings.

  • Just Say'n||

    Are we still pretending that Ginsburg is ever skeptical of government power unless it has to do with abortion? Someone needs to read Hamdi v. Rumsfeld

  • Mickey Rat||

    Why does it not require a warrant to obtain the company's records? Why should not thst be part of the standard contract between an IT business and the customer that they will not turn over records sans a warrant?

  • ||

    Because if the government wants it, they should have it!

    All of these type cases always are about scheming and complicating a simple matter to allow the government to get what it wants.

  • ||

    Are you suggesting that telcos should be required to ask for a warrant before turning over such information or suggesting it would be a good idea or business model for them to do so first?

    There's a case to be made (several actually) that, in some situations and just as with other unwarranted searches, have unfettered access to the information in question. I don't recall the exact case, but when the FBI was attempting to force Apple to compromise its own phones, they cited a case where a telco that refused to provide cellular GPS information of a potential kidnap victim to police without a warrant and that it was plausible (and it was) that the delay didn't prevent (or facilitated) the victim's demise.

  • Procyon Rotor||

    If the case was that urgent, why the hell couldn't they get a warrant?

  • Mickey Rat||

    Maybe an exception could be made for actual ticking bomb situations, but in the course of a normal criminal investigation? Particularly since it does not seem that difficult for law enforcement to get warrants for any reason at all.

  • Brett Bellmore||

    Yes, that's what is being suggested. It the information about my calls isn't mine, it's the phone company's. The only difference is who gets served with the warrant, not whether or not one is needed.

  • ImanAzol||

    If it's not my information, then I have no legal responsibility for the contents.

  • BambiB||

    There should be a term in the contract that says if the company surrenders the information to ANYONE without a warrant, it is subject to massive damages. But the companies draft the contracts. You think they're going to add liability for themselves?

    The question of whether there is implied confidentiality of records is an interesting one. If I go down to the local cell phone company and ask to see your cell phone records, will the company turn them over to me? If not, why not? If law enforcement, absent a warrant, asks for the same information, do they have any greater right to the information? No. They do not. So then the question turns on whether there's ANY right to privacy in one's cell phone records.

    We've seen the MASSIVE response of internet companies to the admission that the government spies on virtually all electronic communication. Sites that do not use https protocols are becoming scarce. Most sites have increased the requirements for password security. This is not done to protect against criminals so much as to protect against government because companies that do NOT protect your private information in that sphere lose business.

    We should apply the same standard to cell phone companies. We can vote for government to address the issue, but the faster route is to vote with our dollars and refuse to be customers of companies who do not respect our privacy.

  • Jickerson||

    Require that the government always get warrants for this information held by third parties, even if the third parties would willingly hand it over without one. It could just be a restriction on the government rather than the companies themselves. If the government violates this, then all evidence should be thrown out at a minimum.

  • Wizard4169||

    These businesses only operate on government sufferance. Without permission from the holy government, they'd be out of business. Thus, they're understandably disinclined to piss off said government. Relations to customers typically come in a distant second.

  • damikesc||

    Great idea.

    But, groups like the FTC and FCC can make life a living hell for those companies that do not play along. Simple reality.

  • Jickerson||

    More realistically (kind of), we need to switch to technologies that don't collective massive amounts of information about people by design. Everything should be encrypted and all the software should be Free Software (as in freedom). It's unlikely that we'll be able to stop mass surveillance in the short-term, so other approaches are needed.

  • Sopater||

    What if the government asks a third party for the info, and said party is willing to provide that info to the government without a warrant? Would a warrant still be required?

    I think that if the third party has the information that the government desires, and is willing to provide that information without a warrant, then one should not be needed.

    However, that should also cause patrons to be wary of who they choose to do business with. I would much prefer to patronize a business that would not willingly surrender sensitive information to the government absent a valid warrant.

  • Ron||

    When you hnd mail over to the USPS, a third party, don't the police have to get a search warrant to view your mail?

  • BestUsedCarSales||

    Seems like it's closer to the police getting information on when and where the package was during shipment.

    Which I think is still very questionable. Probably we should just depower police even further.

  • Kivlor||

    See! We told you Trump was a fascist who would appoint a fascist to the SCOTUS! Gorsuch just proved it!

    /some prog probably

  • Eric||

    "See! Trump is a proto-fascist who got really good advice on his Gorsuch selection"

    /me

  • NotAnotherSkippy||

    What was the giveaway, the appointment of originalist judges, elimination of unconstitutional csr payments, devolution of congressional powers back to the congress, or the elimination of regulations? Let me guess, it was the expression of opinions you don't like which have been completely unsupported by follow up actions, right?

    Inquiring minds want to know.

  • Eric||

    "Let me guess, it was the expression of opinions you don't like which have been completely unsupported by follow up actions, right?"

    Well...yes...what you say you're going to do generally means something. Especially when you are POTUS. Just because the US has powerful institutions to restrain Trump's knee from jerking, doesn't mean I give him credit for restraint.

  • NotAnotherSkippy||

    You mean the powerful institutions that barry ignored and trump is honoring? Those institutions?

  • MikeP2||

    Stop. Eric really has no idea what he's talking about. He's just regurgitating what his friends said on Wastebook.

  • I can't even||

    "a division between two conservative justices."

    Alito? He's conservative?

  • Eric||

    "Alito? He's conservative?"

    - Yes, if you accept conservative as meaning "to conserve the status quo" or "adverse to change" or "trusting of established institutions to lord over our society"

    - No, if accept conservative as meaning classically liberal (as many here seem to do)

  • I can't even||

    This - the guy who re-wrote ACA by channeling their true intentions.

  • NotAnotherSkippy||

    Wrong judge.

  • markm23||

    Alito is a progressive fascist, with more emphasis on "fascist" than with the so-called "liberals".

  • Elias Fakaname||

    Alito is a socialist?

  • Lester224||

    I suppose he's a progressive fascist because he was appointed by another progressive fascist George W. Bush.

    Who isn't a progressive fascist now according to markm? Just Roy Moore?

  • Rich||

    Well, there's certainly no reasonable expectation of privacy in dealings with OPM.

  • juris imprudent||

    *rimshot*

  • Ken Shultz||

    I maintain that Shultz got it right in Shultz vs. Glib, when he said that all rights are, in fact, choices. In light of that . . .

    "In other words, Carpenter has no Fourth Amendment right to privacy in his cell phone records because he voluntarily used his cell phone, thus voluntarily disclosing his location to the various cell phone towers that handled his calls

    . . . .

    But the real clash occurred after Gorsuch asked Deputy Solicitor General Michael Dreeben to set aside the "third party" aspect of the debate and focus[ed] instead on whether the Fourth Amendment's protection against unreasonable searches of a person's "papers and effects" should apply to the sort of digital information at issue here."

    You can't set aside the central question of volition in regards to rights because that's what rights are--they're choices. The questions are whether someone chose not to turn off his GPS location data, whether he chose not to leave his cell phone at home--because the Fourth Amendment protects the and individual's right to choose, just like every other right is a choice.

  • Ken Shultz||

    A right is a choice regardless of whether it's a property right (the right to choose by whom and how something is used), a free speech right (the right to choose what to say) or a right to privacy (the right to choose what to disclose publicly).

    The Fourth Amendment protects our right to make choices for ourselves regarding what we disclose to the public, and it really doesn't matter whether what's being disclosed is written on parchment, stored on a server, or recorded on vinyl. If the government wants to search someone's private property without his permission, then they need to get a warrant.

    The crux of the matter is choice, not whether "papers and effects" includes murder weapons or data on a server.

  • Michael P||

    The reasons that Alito gave to think that Carpenter has no property rights in the records, even though the law suggests he does -- and in particular the facts that Carpenter didn't ask his carrier to create them, and can't prevent the carrier from doing so -- are a fortiori reasons to think he did not voluntarily disclose their contents.

  • Ken Shultz||

    He had the right to choose to leave his phone at home. He had the right to choose to turn off the location feature. Accidentally or foolishly leaving evidence of a crime in public makes it neither inadmissible nor private.

    I didn't realize I was leaving my fingerprints behind, so you can't use them against me in court?

    I don't think so.

    If he was unaware that he was publicly incriminating himself, that doesn't mean it wasn't in public or that his right to make that choice wasn't respected. It just means he made the wrong choice or was oblivious to his own rights.

    Our legal rights can be and are waived--sometimes foolishly and sometimes in ignorance of the consequences. People waive their right to counsel. People waive their right to remain silent. People waive their right to a jury.

    People can and do waive their Fourth Amendment legal rights, too--especially when they choose to do something in public.

  • WhatAboutIt?||

    Dont forget that the government requires the creation of these records by law. George Bush made it mandatory that all cell phones have GPS enabled. If your phone doesn't have a removable battery you cant truly turn it off. How does this not negate the 4th amendment if the sole purpose of these regulations is to essentially track all your communications and travel activities. The police cannot track you or your vehicle without a warrant correct? so the loop hole would be simple to first, mandate that any and all businesses or persons track all interactions in detail and then supply that at will to the government. What is explained is a direct violation of your rights as the government is making 3rd parties involuntary government agents. If the government didn't force companies to keep these records and record your location with the sole purpose of being able to locate you at their discretion it would be a much weaker argument. Could we not make an argument that we are being stalked by force? These laws were specifically created by the government for this sole purpose and they cannot deny that as per the arguments made through the legislative process were just told its for our protection.

  • Michael P||

    Turning off the location feature would do nothing. Refraining from placing or answering calls would do nothing. The records that the government used depend only on the phone communicating with the mobile-phone network.

    As WhatAboutIt? points out, the government mandates that mobile network operators collect certain information from phones (to support "enhanced 911" service, they must be able to locate any phone relatively precisely) and that those operators keep records of such location information. The user can only opt out by rendering their cell phone useless, and there are countless contexts where we (including the courts) do not accept government intrusions just because there is some way to avoid it that involves giving up rights or making things useless.

    There is a long line of precedents saying in particular that the government cannot evade the Fourth Amendment merely by telling a private actor to do things that the government itself is prohibited from doing.

  • damikesc||

    Look at the bright side...at least you get to pay for the privilege of having the government spy on you.

    "E 9/11 fees" are exceptionally common on cell bills.

  • BYODB||

    It's not necessarily a question of choice, although I can agree in some aspects, but rather is a question of what powers the government has.

    Why should the police have unfettered access to your location via your cell phone without any considerations of a warrant? Just because you didn't turn it off? It appears you believe in positive rights?

  • BYODB||

    A similar but ridiculous example would be if you tell your Doctor you do certain recreational drugs, because they're your Doctor and you want to be honest regarding your healthcare, and then your Doctor goes to the cops and tells them that you're doing illegal drugs.

    Sure, there are laws in place to protect that but why are there laws there to protect that? I mean, the 3rd party doctrine says the Doctor should tell the cops and that no warrant should be needed.

    So why are some 3rd parties given sweeping protections, and others can give up whatever the fuck they want just because they feel like it? Are we saying that the cell phone that pretty much everyone owns is a device you should give up if you expect privacy? That seems like a pretty big steaming pile of horseshit.

    You're basically saying there is no space between 'Luddism' and 'the government can find out whatever they damn well please about you without a warrant'.

    Wow, that's pretty interesting. It's more or less the same claim the left makes that the right to bear arms only counts for muskets. Kudos.

  • damikesc||

    I'd think the same right to privacy that allows abortion should, bare minimum, be allowed to protect your privacy in regards to communication.

    I'd be wrong, however.

    And, mind you, turning it off --- you can still be tracked. Don't assume powered off means the government cannot track you. Just because you cannot track a powered off device does not mean your provider cannot. And if they can --- which, yes, they can (also have a list of every site you visit, but the techs you talk to do not have ready access to it nor the necessary "give a shit" to look for it) --- then the government can.

    Unless you keep your cell phone in a thick, lead case --- you probably cannot avoid being tracked.

  • Eric||

    Rights are either inherent, or are bestowed by other people. You sound dangerously like you're advocating for positive rights.

  • ||

    I actually agree with Ken here.

    Carpenter, in this case, has no standing with regard to the gov't. and while rights aren't bestowed by other people, that's not what's at stake here. We aren't talking about a device that was built and secured by carpenter run over a private network or broadcast linkage of his own making. The government didn't break in to Carpenter's property or hack his secure network. His papers and effects were secure. What you're saying is that the telco (or whomever) must do it's utmost to refute the will of the government, potentially even against its customer's wishes, even when defending known or suspected criminals and/or people engaged in criminal acts.

  • Eric||

    Good point. But I shudder to think of the consequences of such a line of reasoning as we proceed towards a completely digital/interconnected world. What "papers and effects" are we not broadcasting without our knowledge?

  • Ken Shultz||

    It's up to you to know.

    . . . much more so than it was before.

    Regardless, I prefer the world where our privacy is function of our own choices--rather than the nature of what they're looking for being the determinate regardless of our own decisions.

  • BYODB||

    No, it's more like you can either live in the first world or move to Somalia.

    Guess what Ken, there are these things called a 'Terms of Service' agreement and you can either opt in and live a modern lifestyle or opt out and live like the Amish.

    So functionally, what you're saying is that one can either live like the Amish and retail your constitutional rights or you can live in the 1st world and have none.

    Tell me, if you went back in time and asked John Locke about his views on internet privacy what do you think he'd have said? I mean, beyond 'what is the internet'?

  • Headache||

    With some phones you can not turn off GPS. It is mandated by the government to locate 911 calls, at least that is what the government claims. Now we know better.

  • Bubba Jones||

    I don't think this was about gps. This was about pinging cell phone towers.

    To that end, they didn't search the man or the phone. They searched the cell phone towers for fingerprints.

  • Jury Nullification||

    One could argue that the goobermint has circumvented the 4th amendment of consumer/business property through regulation.

    For instance, back in the 90's, Al Gore was opposed to anonymous cell phones. This is my recollection for which I was unable to confirm through searching. Nonetheless, the argument could be made that people are forced to leave an evidence trail through goobermint mandate. Would it be illegal for a cell phone provider to not keep detailed records of its customers? In other words, the goobermint is forcing people to give evidence against themselves through the forced record creation and retention. Alito said, "...The person can't prevent the company from destroying it." Okay, Sammy. Does the gooberment prevent them from destroying it thereby making the business an involuntary agent of the goobermint.

    Would it be okay for the supermarket to require me to give it a DNA sample before doing business with me. You know, because a customer may tamper with the produce and 9-11. Would the goobermint then be entitled to that information without a warrant because one voluntarily gives the supermarket the DNA sample or one uses their discount card. How about Heritage.com and their vast database of DNA.... all fair game for goobermint collection without a warrant?

    Unless one chooses to live in a cave, Alito supports a big fuck you to any assertion that one should get some protection/personal security for engaging in modern society.

  • Jury Nullification||

    Ancestry.com and not Heritage.com

    Hey Reason. With the recent big payday do you think an edit button could be installed? Does Reason put our comments through a woodchipper or do they remain so goobermint can use them to bite us in the ass? Why would Reason want to retain this "proprietary information.?"

  • Tony||

    This is what Sotomayor addressed in the quote I cited above. It seems rather unreasonable if the only way out of giving the government a detailed record of your movements is to not have a cell phone.

  • damikesc||

    It is patently insane, but given that the government dictates much of what cell carriers do (and don't assume consumers don't SUPPORT this because as somebody neck-deep in this business, that is an exceptionally common threat from people whining about assorted "wrongs"), few of them are going to take the chance to rock the boat.

    You get the FCC mad at you and, well, those cellular spectrum auctions might go quite poorly for you. Government contracts can dry up (one exceptionally large provider could turn a profit off JUST their government deals alone). Other agencies can fight you over tower placement. Tower upgrade abilities. There is so many things the Feds can do to major cell providers (much less the tiny ones) that none will fight back, And the FTC isn't a lot better for businesses there, either. Regulations can be enforced quite maliciously.

  • Juice||

    rights aren't bestowed by other people

    Then where do they come from? Your rights originate in your mind and it's up to you to express them and defend them, but for them to be recognized and respected by others requires them to be in the minds of others as well. If a right is commonly claimed, respected, and defended amongst a group, aren't the members of that group all bestowing the rights upon each other?

  • Ken Shultz||

    Legal rights are the government being obligated to respect the real thing.

    "The real thing" rights arise naturally as an aspect of our agency--our ability to make choices. It's an aspect because it's the flip side of morality, which also arises from our agency.

    Hurricanes and earthquakes can't make choices, so talking about the morality of their behavior is absurd.

    Yes, rights are choices, and choices come attached to moral questions about what we should or shouldn't choose to do. Actually, "attached" doesn't really cut it. They aren't attached so much as they're the same thing. After all, rights are choices, and being obligated to respect other people's right to make choices for themselves is the definition of morality.

    Why is rape both morally and legally wrong?

    Because the victim's right to make a choice was violated.

    That we are obligated to respect the right of other people to make choices for themselves doesn't arise from anyone's claims--like legal rights do. Our obligation to make choices that respect the rights of other people arises from our ability to make choices--all by itself.

    If hurricanes and earthquakes had the ability to make choices, they would be obligated to respect people's rights.

  • BillEverman||

    The Telecommunications Act of 1996 does impose a requirement on telecommunications providers to protect the privacy of customer information. And, shockingly, probably because it was written before 9/11, it doesn't just have a blanket exception for law enforcement; it actually exempts law enforcement requests in emergencies only.

    In the absence of such laws, if I was interested in what you have been up to, I could contact the phone company, and make them an offer of x dollars per month for a copy of your phone bill, and if they liked the price, I could have it. But with such laws in place, the phone company's response would be "come back with the subscriber's permission or a court order (like a warrant or a subpoena)."

    That is the same answer they should be giving the police.

  • Tony||

    There is no Santa Claus dude. Rights are legal fictions enforced by governments. (Courts are part of government.) That doesn't mean they aren't good.

  • Eric||

    I understand the real-politik of what you're saying Tony. However, you have to start with a basic premise on the nature of rights. Our entire political and legal system was founded on the premise that rights are granted not by government but inherent as human beings. It's this misunderstanding, more than anything else, that will continue to drive a wedge between libertarians and progressives. We may be on the same side of many arguments, but for entirely different reasons.

  • Tony||

    It's not realpolitik, it's rationalism. And I think it's important not just on a semantic level. You can't defend something properly whose nature you are wrong about. And your assertion is simply of the existence of magic. What does it means that rights are inherent? Are you saying that they are a physical presence that exist somewhere out there, or inside the brain? Or are you knowingly engaging in a little fiction-telling yourself, the purpose of which is to claim that whatever set of rights you believe in are immutable by even the strongest democratic majority?

    Do North Koreans have all the same rights we do? Isn't this at best a matter of how you talk about rights? I say people only have rights when they actually have them. And I think that matters because simply smugly telling North Koreans that they actually do have a right to freedom of thought does them little help.

  • NotAnotherSkippy||

    Tony is absolutely right on this one. Which means the world is ending. I'd like to say it's been a good run, but meh.

  • Jordan||

    And I think that matters because simply smugly telling North Koreans that they actually do have a right to freedom of thought does them little help.

    Whereas telling them that whatever their government does to them is perfectly moral is really helpful.

  • Tony||

    When someone makes that argument do let me know so I can tell them what a dumbass they are. I won't wait around because I doubt anyone in the history of political philosophy has ever made it.

  • Jordan||

    If North Koreans don't have a right to not be murdered for disrespecting Dear Leader, on what basis is it wrong for their government to do so?

  • Tony||

    Because our moral codes say so. Dear Leader's moral code probably disagrees. What does it mean to say they have the right? That when they're being exploded by heavy artillery for the amusement of the fat kid, that they should have a little extra comfort knowing that it was wrong for this to happen?

  • Jordan||

    "Our moral codes say so"

    Nice tautology.

  • Tony||

    Welcome to moral codes.

  • Jordan||

    What does it mean to say they have the right?

    It means they're entitled to use violence to defend themselves, and others are entitled to do so on their behalf.

  • Eric||

    "Because our moral codes say so."

    The moral codes you mention are exactly the natural rights that I'm talking about: The right to life that we as liberal westerners assume is inherent to all humanity.

  • Jickerson||

    The moral codes you mention are exactly the natural rights that I'm talking about

    So it's all completely subjective?

  • Elias Fakaname||

    'Dear Leader' is very likely a psychopath. If so, he is incapable of understanding morality, let alone practicing it.

  • Eric||

    "I say people only have rights when they actually have them."

    I get it. So either we agree that some rights are inherent (ie. life, liberty, pursuit of happiness) or we state that they are only rights when backed by government force. I agree that rationally it's a matter of semantics as in the end ALL rights must be guaranteed via state force in order to be legitimate. However, in your example, positive rights can be created out of thin air (A right to gender reassignment surgery), and they can trample the rights of others (My right not to be forced to fund said surgery via taxation). This constant enumeration of new "rights" is the slippery slope to authoritarianism that progressives never seem to understand.

  • Tony||

    I think the entire point of liberal democratic tradition is to increase the number of rights.

    Of course they can come into conflict. A person's right to be free from discrimination at the workplace interferes with an employer's right to discriminate. We do have to choose between these. But it's not like either one is the correct one because God says so, or whatever. All it takes is weighing what's more important.

    Asserting that we can only have one set of rights (meaning one set of policies) for all time is the more authoritarian stance, from my perspective. And to this day I don't understand why libertarians claim to be the biggest freedom lovers while their entire project seems to be dismissing as many rights as they possibly can.

  • Eric||

    "But it's not like either one is the correct one because God says so, or whatever. All it takes is weighing what's more important."

    On the surface that sounds entirely reasonable. However, what is important to me may not be important to you. And all is well for you until I get a majority on my side to state that your rights aren't as important as my rights. And once I convince a judge that I'm correct, you're rights have been negated.

    "And to this day I don't understand why libertarians claim to be the biggest freedom lovers while their entire project seems to be dismissing as many rights as they possibly can."

    I think that libertarians tend to see the slippery slope. On policy, you and I probably agree more than we would disagree. However, on principle, my support for same sex marriage doesn't come from a love for gay people, or a celebration of diversity. Instead, I simply believe that all people have the right to pursue happiness as long as it doesn't impede upon the same rights of others. Progressives seem unconcerned with the second half of that statement.

  • Tony||

    The thing is a substantial enough majority can take your rights away no matter how loudly you protest that they are innate. We very wisely put supermajoritarian roadblocks up to taking away certain very important rights, because those were seen as the very rights we need in order to maintain the type of democratic society we were creating.

    But who gets to win on the discrimination thing? Always the employer? Why? Because employers' rights are absolute and sacrosanct and employees get none? That's not a matter for a holy text, it's a policy preference. And you're absolutely right that if one side wins the other loses. That's what democracy is for: debating these things and convincing majorities to agree with you. Saying you get bonus "inherent" points just because you say so is not playing fair.

  • Elias Fakaname||

    "The thing is a substantial enough majority can take your rights away no matter how loudly you protest that they are innate"

    That doesn't mean anything. I can kick in your door, force my way into your residence and violate your innate rights with relative ease. That doesn't mean you still don't have them. They're not gone, merely infringed.

  • DesigNate||

    And to this day I don't understand why libertarians claim to be the biggest freedom lovers while their entire project seems to be dismissing as many rights as they possibly can.

    Because it's not a right if it requires action from another person?

  • Rebel Scum||

    Of course they can come into conflict.

    Only positive rights come into conflict. That's why they are not rights.

  • MikeP2||

    ah, Tony, you betray your proggy statist worldview with this gem...

    "I think the entire point of liberal democratic tradition is to increase the number of rights."

    the only thing a state does is take away rights.

  • Barbara Yarhead||

    Gonna at least partially agree with Tony. Inalienable rights are "nonsense on stilts". This doesn't imply that governments grant or create rights. Rights can and have existed well before complex societies.
    A right is created whenever two or more persons agree to respect an ideal. Government can merely serve to reinforce or adjudicate disputes or conflicts after the fact.
    If everyone had the same view of rights, there would be no need for the government to enforce them.

  • Headache||

    telling North Koreans that they actually do have a right to freedom of thought

    They do have a natural right of thought. They do not have the right to make those thoughts known to the government.

  • Elias Fakaname||

    It would certainly be unwise.

  • Rebel Scum||

    Rights are legal fictions enforced by governments.

    In the Constitution, all powers of the government are written in the positive. All rights are written in the negative. That is to say that all rights mentioned are assumed to exist before the government and the limitation from infringing on them is put on the government. Our entire legal system was created under the premise that rights are inherent. You lose.

  • Juice||

    Rights are legal fictions enforced by governments.

    No, they aren't necessarily enforced by government, but are routinely violated by government.

  • damikesc||

    Depressing but accurate statement by Tony.

    If you read their constitution, citizens of the USSR had a TON of freedoms.

    Fat lot of good that did for them.

  • Ken Shultz||

    "Rights are either inherent"

    Don't get lost in the semantics.

    Our rights are inherent because they're an aspect of our agency--our ability to make choices.

    Because I showed why they're inherent doesn't mean I said they aren't inherent--quite the opposite.

  • juris imprudent||

    Of course if free will is just an illusion, then so too are our rights Ken.

  • Juice||

    And?

  • BYODB||


    Our rights are inherent because they're an aspect of our agency--our ability to make choices.


    Never heard this one before, but people start to get weird when you point out that those 'inalienable rights' they like to stand on supposedly originate from god.

  • Bacon-Magic glib reasonoid||

    Shultz vs Glib...was that the case about baby otters that rape?

  • ||

    More and more, I love Gorsuch. He's exactly the type of Justice we needed.

    He understand that this is simple. If its between three people, it doesn't matter. Its still a search.

  • Tony||

    The real question should be about whether the third-party doctrine keeps with the spirit of the 4th amendment in the modern era.

    "It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks." --Justice Sotoymayor

    Gorsuch's fixation is very propertarian and portends much annoying bullshit in the decades to come.

  • ||

    Gorsuch's fixation is very propertarian and portends much annoying bullshit in the decades to come.

    If only because you continue posting.

  • Kermudjin||

    Gorsuch's argument for privacy protection of "third party data" has a basis in medical information. Laboratory records and medical chart notes are not created by the patient, but by the service provider. Yet our government has long recognized the privacy of such information about an individual and protected it with specific statutes, such as HIPAA.

    There are other statutes that specifically protect third party information for electronic communications, such as the Telecommunications Act of 1996. It has a specific section on privacy that defines Customer Proprietary Network Information to include location information, and explicitly forbids its disclosure except as required for provision of the network services or for emergency response services, like 911 calls. Unfortunately, the statute makes no specific mention of disclosure to government, as presumably the legislators assumed that this would be covered by the Fourth Amendment. The FISA law enacted in 2008 circumvents this to allow the NSA, FBI and other intelligence agencies to warrantlessly collect and "query" data related to "foreign intelligence information," an intentionally vague and overly broad phrase that allows interception of citizens' communications.

    It is time congress addressed this to amend and clarify the FISA law, that is set to expire this month, as well as provide clearer regulations regarding the privacy of electronic information about consumers.

  • cjcoats||

    IMNHO, if disclosure of this information to a third party is illegal, then in the absence of a warrant, disclosure to the government is equally illegal.

  • MikeP2||

    Bad analogy. We're not talking about 'medical information' but rather the date of a visit to the office. The government did not get the contents of the phone call, but rather the rough location of the phone when used.
    It's a big legal difference and why the case is even being heard by SCOTUS.

    Ultimately Congress needs to step up and define the law for the networked information age.

  • $park¥ leftist poser||

    Seems to me that there should just be a rule that says if the police need to ask anyone for any information about anything then they need a warrant.

  • NotAnotherSkippy||

    What about an eyewitness account? Is there harm with asking a third party for a recording they took of a crime (ask, not compel)?

  • Jury Nullification||

    "Is there harm with asking a third party for a recording they took of a crime (ask, not compel)?"

    Depends. Does this recording document only police criminality? Harm is just about guaranteed should you refuse.

  • NotAnotherSkippy||

    Kinda missed the last three words of what I wrote.

  • The Last American Hero||

    Can I please have that video you took of me administering a beat down? Be a damn shame if something unfortunate happened.

    See, the officer was just asking, not compelling anything. Right.

  • Rev. Arthur L. Kirkland||

    The difference may be this simple: Justice Alito is the more reflexive and enthusiastic cop succor among these authoritarian conservatives.

  • Mickey Rat||

    Do not forget, thete is also a precious judicial precedent to protect.

  • PaulTheBeav||

    The term "papers" is a proxy for information. By saying that you have a right not to have your papers searched, the framers of the Constitution meant that you have a right not to have your information searched. However, I don't believe they meant that you have a right to not have information about you searched, they just meant the information you own. In this particular case the information is owned by the cellular company. The cellular company handed over the information voluntarily without a warrant.

  • juris imprudent||

    Good point, there seems to be an attitude that the paper itself is sacred vice what information is contained within those papers.

  • Juice||

    Which they should stop doing, but the government has them by the balls at all times, so it's as if the telcos don't have a right to privacy (or information property) either.

  • ||

    Gorsuch might be the best justice we have right now. Amazing good luck.

  • I am the 0.000000013%||

    7 dimensional chess

  • MikeP2||

    "good luck"

    What a crock of shite. Thank Trump, you partisan schmuck. Give him credit where credit is due.

  • loveconstitution1789||

    The information being sought by the government does not have to be property to be protected. These records can be considered effects or papers, since at the time of the Constitution businesses could have held people's business records (papers).

    4th Amendment: 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.

    The government wants these records because they reveal information about a certain person and yet that certain person has zero vested interest in government not grabbing records at their leisure? Thanks to government regulation, most phone companies do not want you to have an anonymous account that is not linked to a physical person. The government hates burner phones or if you were able to just pay anonymously for a cell phone number that can never be traced to any specific person.

    This anonymity fear by government is why companies has pushed to link accounts to physical persons and make the passwords "more secure". This way a certain person will be linked to an account and that can be used against them should the need arise.

  • Hank Phillips||

    Why not? Anonymity is what empowers bureaucrats to bully people with no fear of repayment in kind.

  • Gozer the Gozarian||

    Can the a doctor surrender your medical records to the government? And what is client-attorney privilege?

    Would not both of those be an examples of it?

    And under the DMCA, ISPs are not allowed to provide third party copyright holders your PII or account information.

    There are ample examples of this.

  • operagost||

    Is it OK for me, a private citizen, to poke through someone's cell phone records? If not, then neither should law enforcement without a warrant.

  • Episteme||

    THUNDERDOME! THUNDERDOME! THUNDERDOME!

  • cjcoats||

    Dreeben's "I can't think of anything that would be characterized as a property interest with those traits...." is absolutely wrong.
    The example is copyright, at least post-Berne. Copyright exists as soon as the performance is stored "in tangible form" -- i.e. the act of making those records creates the copyright-item; moreover (in the absence of a written and specific agreement to the contrary), the copyright belongs to the perforemer, not the idiot behind the video camera.

  • atheistrepublican||

    Perhaps "conservative" isn't an accurate description of one or both of these justices?

  • Jim Macklin||

    The Justices' questions do not necessarily represent their actual opinion, rather they may ask questions to solicit answers to objections that might be raise. A rhetorical question as it were.
    Cellphone towers must, by design "ping" every cellphone within range just so that calls may be made and received. That is why you can be in Oxnard and dial your friend who lives in Fresno but s unknown to you in Las Vegas at the tables.
    Such location records and identification of phone ownership for billing purposes belong to and are property of the phone company.
    The TOS for most electronic services contain a privacy statement that generally says that Company A will or will not share commercial, personally identifying data with Company B, C or D. But Government L, S or F can have laws or warrants to collect data other than the content of the data sent and received, such as Person a1 calls person a2 and says, "Meet you behind the bank at 4:30, bring your gloves, mask and bag."
    The lesson that is being taught...
    Every cellphone now has a GPS and voice sounds are picked up by the phone because the phone is waiting "to help ou" with the location of food, exits, traffic jams or what ever you need.
    If you're planning a bank robbery, have your partner carry your phone and be somewhere away randomly.
    Or use the Hillary Technique and use a 20 ounce hammer on your phone.

  • Elias Fakaname||

    "Or use the Hillary Technique and use a 20 ounce hammer on your phone."

    And also have your bought and paid for minions who run the FBI cover for you.

  • Hank Phillips||

    I'd have more sympathy for bank robbers who at least had sense enuf to also bring a gun... IRS agents never go on looting sprees without their guns. And I'l like to see someone subpoena their cellphone GPS data.

  • XM||

    Gorsuch is like one of 3 things Trump did right in his first year in office.

    Gorsuch is also the Net Neutrality of his time, because all the liberals screamed that he would pollute the air and ensure that women get paid less than men.

  • DiegoF||

    Gorsuch is the white people of Net Neutrality

  • Hank Phillips||

    You Republicans are still smarting from the Liberal Party teaching the Dems how to spell R-E-P-E-A-L back in 1932, aren't you? You have my schadenfreude, je je je.

  • Bubba Jones||

    Hmmmm. Alito makes an interesting argument. It is the cell phone company that makes the observation and creates the property.

    This then makes for a warrantless search of the cell phone company.

    It is then up to the user to select a cell phone company that will respect his privacy.

    I don't know what happens when the fbi asks AT&T for information about a roaming customer pinging its towers.

  • Greg_Cherryson||

    Trump has redeemed a lot of his past and future faults by nominating Gorsuch.

  • WillPaine||

    Of course, the memory/file/s of your phone are a clear equivalent to your effects, and in the techno times we live in, are effectively your papers. And with no doubt are protected by the 4th Amendment. An eighth grader would call any other ruling unconstitutional obfuscation, and would be right.

  • para_dimz||

    Suppose each of Carpenter's comminiques were letters sent USPS. What the USPS does is reveal the locations of the mailboxes the letters were dropped into. The letter's content isn't read. Carpenter isn't compelled to testify as to which mailboxes he used. Carpenter has no privacy right to quash the USPS cooperation with gathering that particular chain of evidence.

  • para_dimz||

    Get a SAT phone.

  • GamerFromJump||

    It should be patently fucking obvious that digital information files are "papers" in the context of the 4th Amendment. When I tell students to "turn in their papers by such-and-such a date", I'm expecting .docx files in my Blackboard inbox, not actual pieces of paper. People who argue this point are as dumb as the dumbasses who think the Second Amendment is for muskets, and those people are functionally retarded.

    Even if they weren't papers, digital data certainly constitutes "effects", so the results are the same; get a fucking warrant!!!

  • MikeP2||

    The only reason Carpenter is being reviewed by SCOTUS is because case law really hasn't touched on this area yet. But of course, you think its "patently effin obvious" what the outcome is.

  • Bruce Majors||

    Not that I've looked yet, but is this an exclusive. Did anyone else - especially outside of legal or jurisprudence trade journals - cover this?

    Thank you Mr. Root.

  • Hank Phillips||

    Elihu Root was right about the Volstead Act and 18th Amendment, just NOT according to La Suprema Corte. It took the Crash, Depression, Banking Panics and five consecutive elections in which tax-enforced prohibitionism was the leper's bell of the approaching Republican to drive that point home. Yet the 16th Amendment is still there, wrecking the economy in 1987 and 2008 exactly as during the Bert Hoover Administration.

  • gordo53||

    How, exactly, did law enforcement acquire the suspect's cell phone records? That seems to be the rub here. I suspect that this is telling us that despite denials from the cell phone carriers, government agencies have unfettered access to those records. If the data was obtained specifically from the suspect's cell phone, then one would think a warrant would be required.

  • Hank Phillips||

    There is a general assumption here that La Suprema Corte, unlike El Congresso, cannot be bribed, has integrity, and is unmoved by superstition and social pressure. Might I have a look at the evidence supporting such beliefs?

  • gordo53||

    Good post. Thanks for the chuckle.

  • MikeP2||

    The "clash" bit is overwrought. But anything to gin up controversy around 'conservatives', right Root?

    As Dreeben argued ""....there has never been a property right recognized in information that's conveyed to a business of this character.""

    Which is why it at SCOTUS at all. One should expect disagreement and different viewpoints from the judges.
    Perhaps the article would be better focused on the knee-jerk politicos on the bench who everyone knows exactly how they will vote before the case ever reaches them. That is the problem....the utter lack of willingness to think, discuss, or heaven-forbid, surprise people with a novel insight.

    Here's look at you Ginsburg...Kagan....Sotomayor. Toe that party line.

  • ceanf||

    Anybody else catch Alito's little Freudian slip on page 26...

    "And it's not contested that this was a lawful -- that this was a lawful search. I mean, I'm sorry, a lawful stop."

    Somebody has already made up his mind.

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