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Huge Win for Everyone With a Cellphone (and for the Fourth Amendment) at the Supreme Court

SCOTUS rejects warrantless cellphone location tracking in Carpenter v. United States.

U.S. Supreme CourtU.S. Supreme CourtIn a blockbuster 5-4 decision issued today, the U.S. Supreme Court ruled that warrantless government tracking of cellphone users via their cellphone location records violates the Fourth Amendment. "A person does not surrender all Fourth Amendment protection by venturing into the public sphere," declared the majority opinion of Chief Justice John Roberts. "We decline to grant the state unrestricted access to a wireless carrier's database of physical location information."

The case is Carpenter v. United States. It arose after the after FBI obtained, without a search warrant, the cellphone records of a suspected armed robber named 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.

The central issue in the case was whether Carpenter had a "reasonable expectation of privacy" in the information contained in those records, or whether he had forfeited such privacy protections by voluntarily sharing the information with his cellular service provider. As the Supreme Court put it in United States v. Miller (1976) and Smith v. Maryland (1979), "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."

In his ruling today, Chief Justice Roberts "decline[d] to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user's claim to Fourth Amendment protection." He continued: "Whether the Government employs its own surveillance technology…or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through [cell site location information]."

Roberts' opinion was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Justice Anthony Kennedy filed a dissent, joined by Justices Clarence Thomas and Samuel Alito. Alito also filed a dissent, which Thomas joined. Thomas also filed a dissent of his own. Justice Neil Gorsuch dissented alone too.

Kennedy, joined by Thomas and Alito, complained that "the Court's stark departure from relevant Fourth Amendment precedents and principles…places undue restrictions on the lawful and necessary enforcement powers exercised not only by the Federal Government, but also by law enforcement in every State and locality throughout the Nation." In their view, the Court should have followed its precedents in Miller and Smith and held that "individuals have no Fourth Amendment interests in business records which are possessed, owned, and controlled by a third party." Cellphone records, they maintain, "are no different from the many other kinds of business records the Government has a lawful right to obtain by compulsory process."

Justice Neil Gorsuch struck an entirely different note in his lone dissent. Indeed, his dissent reads much more like a concurrence. It seems clear that while Gorsuch agreed with the majority that Carpenter deserved to win, he strongly disagreed with them about how the win should have happened.

"I would look to a more traditional Fourth Amendment approach," Gorsuch wrote. "The Fourth Amendment protects 'the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.' True to those words and their original understanding, the traditional approach asked if a house, paper or effect was yours under law. No more was needed to trigger the Fourth Amendment." Furthermore, Gorsuch wrote, "it seems to me entirely possible a person's cell-site data could qualify as his papers or effects under existing law."

"I cannot fault" the majority "for its implicit but unmistakable conclusion that the rationale of Smith and Miller is wrong; indeed, I agree with that," Gorsuch explained. "At the same time, I do not agree with the Court's decision today to keep Smith and Miller on life support." In other words, Gorsuch would scrap these third-party precedents and have the Court start adhering to an originalist, property rights-based theory of the Fourth Amendment. That's how Gorsuch wanted Carpenter to win.

The importance of today's ruling in Carpenter v. U.S. should not be underestimated. Both the majority opinion and Gorsuch's dissent raise questions about the future viability of two key Fourth Amendment precedents. What is more, the decision itself represents a massive win for Fourth Amendment advocates. Carpenter may well be remembered as the most significant decision issued this term.

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  • loveconstitution1789||

    After reading Gorsuch's dissent I see that he is trying to wade through the quagmire that is modern jurisprudence to find a simple test to protect property and limit the government. He discusses bailment as the solution.

    I am glad that the court is trying to protect the protections of the 4th Amendment but they have made law more complicated in the process.

    The US government and states have so bloated jurisprudence with complexity, unconstitutional interpretations, and unconstitutional government power that an originalist like Gorsuch tries to limit power and complexity which sometimes inadvertainly helps government. Government is already so unconstitutionally powerful that getting them to protect 3rd party records is a challenge for Americans.

  • BestUsedCarSales||

    Yes. I was wondering when I saw that he dissented, but reading the dissent calmed my concerns on him.

  • Moridin||

    Exactly the same here. I was worried for a few moments.

  • BestUsedCarSales||

    Especially considering he affirmed the online sales tax law just yesterday.

  • Moridin||

    Yeah that is a bummer. I haven't read that decision yet.

  • Chipper Morning Baculum||

    It's too early to make a judgment on him. Suffice it to say you can never tell with these Supremes until they start dishing out decisions.

  • JFree||

    Doesn't calm mine. I'm sure some lawyer can correct me but shouldn't he have issued a separate concurring opinion (not a dissenting opinion) if he agreed with outcome but disagreed with the reasoning or wanted to even more broadly challenge the third party doctrine precedent that produced the outcome? Isn't that what concurring opinion is for?

  • CE||

    He already knew his side was going to win perhaps.

  • Ramer||

    It's a dissent because Grosuch also argued Carpenter waived the right to make a property-based argument by failing to raise it below or in the briefing to SCOTUS.

  • AJD||

    You're correct. He didn't agree with the outcome. He just mused that he might have agreed with the outcome if the petitioner had made a different argument. Apparently that was enough for some of his supporters, but personally I thought his opinion was one of the worst ones, as he wanted to entirely throw away one of the two ways to win a Fourth Amendment case (and the more commonly used way at that).

  • Moridin||

    Interesting that Gorsuch discussed how litigants/defendants have not made the proper arguments based on his analysis of traditional 4th Amendment interpretation so those arguments are not before the SCOTUS in these 4th Amendment cases; so the court can't do anything about it. An "activist" judge/justice wouldn't care and would fill in the blanks or sua sponte make the argument for either party in order to write (or re-write) law from the bench. I think this is a good sign, at least so far.

  • nicmart||

    But Gorsuch should have concurred despite his opinion.

  • Bubba Jones||

    Why should he sign an opinion he opposes?

    He probably offered to sign it if they modified it.

  • Adam330||

    A justice can concur in the result, but not join the opinion.

  • Rev. Arthur L. Kirkland||

    Perhaps no one explained that to Justice Gorsuch yet?

  • Bubba Jones||

    This is why the 2nd amendment jurisprudence is so bad. No one has challenged the concept of federal firearms laws.

  • perlchpr||

    Well, not entirely. We got fucked when Miller got the equivalent of a default judgement because the opposing side didn't show up.

  • Adam330||

    Not really surprising that the litigants wouldn't raise arguments that aren't rooted in existing precedent. That's a recipe for losing.

  • ||

    I disagree. When it comes to protecting rights, it shouldn't matter if they raised it. Just like standing, the failure-to-raise principle is just ways courts get out of doing their job.

    I'm disappointed Gorsuch doesn't realize that, but glad he at least respects the proper Fourth Amendment reading.

  • AJD||

    Most of Gorsuch's opinion was discussing things that weren't raised by either party, though. And his conclusion was to do something that neither party wanted to do - to throw away more than 50 years of precedents and, to use his words, "look for answers elsewhere."

  • JuanQPublic||

    He's principled, which is what is needed in SCOTUS. However, very glad to see restraint put on law enforcement regarding this decision.

  • General_Tso||

    But, but Trump is eating children at the border, or something.

  • BestUsedCarSales||

    Trump isn't mentioned in this article.

  • Rev. Arthur L. Kirkland||

    He's not history's greatest monster. He's just a silver-spooned, vainglorious, vulgar, selfish, bigoted, character-deprived, reckless boor.

  • CapitalistRoader||

    Yep. He's all of those things (well, except for the bigoted part). And he's arguably the most libertarian president since Silent Cal.

  • Palin's Buttplug||

    Complete idiocy. Carter is by far the most libertarian. Carter actually deregulated vs Trump's false claims.

  • General_Tso||

    'Trump isn't mentioned in this article.'

    That's my complaint! How could the Reason staff allow an article that isn't about Trump and the poor, defenseless chid'run at the border. My God, they're forcing them to use Wii's and Playstation 3s! Won't someone think of the children!!!1!

  • CE||

    And this ruling lets bad hombres roam free throughout the country.

  • BYODB||


    In a blockbuster 5-4 decision issued today, the U.S. Supreme Court ruled that warrantless government tracking of cellphone users via their cellphone location records violates the Fourth Amendment.


    Ever hear of FISA? They'll have a 'warrant', you just won't ever know about it.

  • Citizen X||

    Yeah, but that's at the federal level. Local popo don't have recourse to FISA.

    Solution: more federal involvement in local police matters, at the request of local police agencies. You watch.

  • BYODB||

    They already do this is my understanding, although I'm not positive if it involves FISA and there isn't really any way to verify it through FOIA or otherwise.

    I believe something similiar is called parallel construction which was noted to be an issue with NSA wiretapping but to think it doesn't extend into other area's would probably be incorrect even while we probably won't ever know for sure one way or another.

  • Pro Libertate||

    Why do we have federal law enforcement again?

  • loveconstitution1789||

    For the thousands of federal crimes mentioned in the US Constitution?

    For the part of the Constitution that allows banning of a product or service?

    It must be where the federal government has an enumerated power to control weapons they don't like.

  • perlchpr||

    Well yeah. Didn't you read the New Second Amendment? "The right of the people to keep and bears arms shall not be infringed, unless the gun is too big or too small or shoots too fast or holds too many rounds or is simply aesthetically displeasing in some way."

  • loveconstitution1789||

    Don't forget that they can infringe if someone that knows of you says that government should take your guns away because....reasons.

  • Longtobefree||

    or is an edged weapon, a cannon, a suppressor, body armor, or owned by a conservative.

  • perlchpr||

    Ah, yes! I forgot "too quiet" and "too loud"...

  • Aloysious||

    Federal law enforcement is the club we beat each other with?

  • CE||

    treason, piracy and counterfeiting. I think those are the only constitutionally authorized federal crimes.

  • JuanQPublic||

    Solution: more federal involvement in local police matters, at the request of local police agencies. You watch.

    This wouldn't be surprising at all, especially if they try to weave a "for the children" into it somehow. They certainly don't have principle and evidence to lean on.

  • Cynical Asshole||

    Justice Neil Gorsuch dissented alone too.

    Well that's disappointing...

    "I cannot fault" the majority "for its implicit but unmistakable conclusion that the rationale of Smith and Miller is wrong; indeed, I agree with that," Gorsuch explained. "At the same time, I do not agree with the Court's decision today to keep Smith and Miller on life support." In other words, Gorsuch would scrap these third-party precedents and have the Court start adhering to an originalist, property rights-based theory of the Fourth Amendment. That's how Gorsuch wanted Carpenter to win.

    Ah... nevermind.

  • Jury Nullification||

    Gorsuch explained. "At the same time, I do not agree with the Court's decision today to keep Smith and Miller on life support."

    Really, Neil? Then FFS pull out the breathing tube and let nature take its course instead of insisting the only way is to turn off the machine.

  • loveconstitution1789||

    Gorusch fundamentally agrees that people's 3rd party records should not be easy seized by police. He just disagrees on how to protect the 3rd party info.

  • JFree||

    If he actually believed that then wouldn't he have issued it as a concurring opinion - and in so doing invite a future test case to decide how to expand those protections.

  • AJD||

    Yes. At best his opinion is that *some* 3rd party records should not be easily seized by police. More directly, he says that it "seems to me entirely possible"" that the records in this case should not have been easily seized by police. That's a far cry from fundamentally agreeing that people's 3rd party records should not be easy seized by police.

  • Ken Shultz||

    I'm not convinced the location data from a tower belongs to a cellphone user any more than video in a security camera.

    I like the outcome, but my justification has more to do with whether the user opted into sharing their location data. If the service that tracks that information is turned on by default--rather than the user turning it on manually--then I would argue that the cellphone owner did not share volunteer that information with a third party and hence that information remains protected by the Fourth Amendment.

  • John||

    I have not read this yet, but hopefully, this will start the process of overruling Smith v. Maryland. Smith v. Maryland has long been overcome by events and technology such that all of the concerns the majority dismissed in the ruling have come to fruition.

  • wotan||

    You can't turn off the ability of the cell phone company to track your location based on cell towers. This is not the same as, say, voluntarily sharing your location on Facebook. It's a side-effect of the way cell networks work. Now, do cell companies have a legitimate interest in storing non-anonymized tower (location) data on their customers? That would be a different matter.

  • Ken Shultz||

    "You can't turn off the ability of the cell phone company to track your location based on cell towers."

    If they didn't opt in, then I argue that information is protected by the Fourth Amendment.

    The question to me is whether you waive your right to privacy, and if you didn't do so consciously by giving something to somebody (like giving financial records to a third party), then as far as I'm concerned, the government needs to get a warrant.

  • ||

    You can't turn off the ability of the cell phone company to track your location based on cell towers.

    You mean aside from the button labeled "off" of course.

  • Mock-star||

    I could be wrong, but its my understanding that still would not work. I believe, again IIRC, that one would actually have to take out the battery to disable cell tower tracking.

  • AustinRoth||

    Ken - I think you are mixing up location-based services and how cell phones work in general.

    In this case, it was the simple act of having a cell phone on that causes the location information at any given cell tower to come into existence. Each cell tower is "aware" of all devices it is communicating with, whether any given one of those devices is actively in use or not. It just has to be on. This is how cell towers decide to when pass phones from one tower to the other, and how you get to see how many "bars" of signal strength you have, etc.

    So the only "opting in" is having a phone and having it turned on.

  • AustinRoth||

    And actually, the phone doesn't even need to be turned on. I didn't feel like going down that rat-hole, but the only way to really make your phone invisible to the cellular network is to pull the battery out (on those phones that you can do so).

  • JFree||

    I think its long long overdue for us to have a SC justice who is both knowledgeable about that tech rathole and protective of liberties/rights.

    The partisan screenings of SC justices have been entirely about those partisan litmus tests for so long that the real loss is that we no longer have SC justices who even have a skillset in technology law or pricingvgovt or the sausagemaking reality of legislation/elections

  • Wizard4169||

    Pulling the battery is a bit awkward, and not even possible on many phones. A better solution is to place it in a Faraday cage or sack. This blocks all RF radiation, so no signals from the phone can get out and no signals to it can get in.

  • I am the 0.000000013%||

    Any mylar lined bag will do. Some (many?) potato chips bags will work.

  • Ken Shultz||

    "In this case, it was the simple act of having a cell phone on that causes the location information at any given cell tower to come into existence."

    See comment above.

    My point is that whether the data is protected is a function of whether the user voluntarily shared that information with a third party. That would be the crux of my judgement on this case.

    Rights are choices. Freedom of religion is the right to choose your own religion. Freedom of speech is the right to choose what you say. Property rights are the right to choose who uses something, how it's used, when it's used, etc. We can choose to waive our rights. You can choose to not have a jury trial. You can waive your right to remain silent or your right to an attorney.

    You can waive your Fourth Amendment rights, too--and people do so when they willingly and knowingly hand information over to a third party. That's why the government doesn't need a warrant to go after data you gave to a third party--you waived your right to privacy there willingly.

    I don't see this guy willingly waiving his right to privacy by using a cell phone--and that is the basis on which I would have ruled. It isn't about where the data is and who has it to me. It's about whether the subject voluntarily waived his Fourth Amendment rights.

  • loveconstitution1789||

    Read the dissent by Gorsuch. Its a great discussion on bailment and how property law can have made protection of people's 3rd party record better and less complex.

    I am for all cell phones accounts to be by phone number only with no names, social security numbers, or addresses to link a physical person to a specific phone. Pretty much a burner phone for everyone.

    You pay your anonymous account bill or they shut off the phone. Same thing with internet service and tv services. The government loves to tie all this technology to people rather than anonymous accounts.

  • I am the 0.000000013%||

    This is a brilliant solution. Thank you!

  • Wizard4169||

    You agree to having your location tracked by having a cell phone in the first place, and the only way you can opt out is by turning off the phone. (And putting it in a Faraday sack for good measure.) Your service provider has to track your location at all times. If they don't know where you are, they can't route your calls. I suppose it's not technically necessary that this information be stored, but providers have plenty of reasons to do so, and I'm not aware of any who offer any provision for opting out.

    Myself, I believe the whole third-party doctrine was ludicrous from the beginning and shoot be eliminated, root and branch. Just because I choose to share certain information with certain people for certain purposes, that doesn't mean I'm putting it out for just anybody. It's wildly irrational to treat data differently from physical property.

  • Jury Nullification||

    "...but my justification has more to do with whether the user opted into sharing their location data."
    Yeah, fuck the ignorantly trusting.

    Why not question the justification for the phone companies recording and retaining (individualized) location data records? Surely, there must be another way for cell carriers to get what they need without doing so. What is more basic to freedom than freedom of travel without state surveillance?
    Why not go old school and insist on hearing, "Your paperz, pleaze?" It's more honest.

    So, anyone knowingly taking advantage of a potential cell phone benefit for themselves should not be able to do so away from the watching eyes of their betters?

  • CE||

    Clearly and logically, the data belong to the cell phone company. And they should have no obligation to comply with law enforcement requests without a warrant.

    And individuals who want to remain untracked should not buy a cellphone that identifies them.

  • Citizen X||

    I like Gorsuch's dissent, but i would have been pissed if he'd been responsible for the ruling going the other way.

  • loveconstitution1789||

    Same here. Someone mentioned that he really explained himself and dissented because there was already a majority.

    In other words, he might have partly joined a majority if they needed him but blasted the complexity of expanding Katz.

  • Bubba Jones||

    If they had needed his vote, they might have included his argument...

  • Citizen X||

    I hope that's the case. Still, like Escher says below, he could have concurred and still explained why he didn't agree with the reasoning of the majority.

  • EscherEnigma||

    Gorsuch does know he can write his own concurrence, and doesn't have to dissent to say "I agree with the outcome, but not the method", right?

  • Chipper Morning Baculum||

    This is what worries me. Nevertheless, it is nice to find an issue on which everyone here agrees. Is there even a single commenter here that thinks this is not good news and a good decision by SCOTUS?

  • Leo Kovalensky II||

    I think you just lit the Reverend Kirkland signal. Way to go clinger.

  • JFree||

    the Court's stark departure from relevant Fourth Amendment precedents and principles…places undue restrictions on the lawful and necessary enforcement powers exercised not only by the Federal Government, but also by law enforcement in every State and locality throughout the Nation

    If precedent says that, then precedent is an ass.

  • Chipper Jones||

    *a ass

  • Scarecrow Repair & Chippering||

    A literate scholar!

  • CE||

    Legal precedent is usually wrong.

    Just like scientific consensus.

  • ||

    Also, the whole point of the Constitution is to place restrictions that seem "undue" to them to ensure the protection of liberty. Kennedy is the ass.

  • Cosmo Man||

    I do not voluntarily give my information to my cell phone provider. I am forced to do it if I want a cell phone. I would gladly opt out if given an opportunity.

  • Bubba Jones||

    The verizon privacy policy implies that they should not be sharing location data with the cops unless they have a court order.

    We may disclose information that individually identifies our customers or identifies customer devices in certain circumstances, such as:

    to comply with valid legal process including subpoenas, court orders or search warrants, and as otherwise authorized by law; in cases involving danger of death or serious physical injury to any person or other emergencies;

    Unless they just file that under "authorized by law."
    http://www.verizon.com/about/p.....acy-policy

  • Longtobefree||

    Note that the cops DID have a court order. They did not have a "search warrant".
    I suspect the court order does not have to be quite so specific as to the place and thing searched for, but am not sure.

  • JFree||

    This^^

    There are a ton of tech practices where our information is taken not by agreement but by default - and mostly we don't even know what that is. Nor can we, as individuals, ever even find out what's going on.

    One example is media or some other types of ad-based websites. Come in from an EU-based IP, the site won't even display because the EU actually does require explicit agreement for some types of data. Come in from a US-based IP, and the info has already been taken before it would even be possible to have a form display to gather agreement. And the only way an individual will ever know this is if they travel back and forth across the Atlantic to guess what is being infringed/taken/sold where.

  • EscherEnigma||

    Then throw your phone in an incinerator (or less dramatically, sell it). Cell phones aren't a necessity, they are 100% optional. Hell, you even have the option of getting a burner phone if you still want to be able to make and receive calls without having it more tightly tied to yourself.

    So I'm skeptical that you would "gladly opt out" if given an opportunity", as you get that option every month you pay your bill.

  • CE||

    You can opt out. Don't buy a cell phone that requires you to identify yourself.

  • Jickerson||

    Or we can recognize that the third party doctrine is fundamentally incompatible with a society where you frequently have to give up your information to third parties in order to conduct normal business. This isn't just about cellphones, even though this specific case was about cellphones.

    Alternatively, you can just tell anyone who doesn't like the government intruding upon their lives to become a hermit. That doesn't seem reasonable, though.

    Personally, I'm more in favor of just forcing the government to always get a warrant. As a libertarian, I have no issues with putting severe limitations on the government's power.

  • Bubba Jones||

    Gorsuch MAGA

  • Alpaca||

    I honestly think Gorusch should have voted with the majority and wrote a separate concurrence.
    The majority reached the right result for the wrong reasons.
    The minority just flat out adopted the most statist position on the 4th amendment. In general, the conservative justices hate the 4th.

  • Rich||

    "A person does not surrender all Fourth Amendment protection by venturing into the public sphere," declared the majority opinion of Chief Justice John Roberts.

    Ha! Take *that*, license-plate readers and facial-recognition software!

  • Longtobefree||

    I have read/heard other outlets saying that the data was actually from the cell phone itself, not from company held tower data. Big difference in terms of 'giving up control'.
    So much for accurate media reporting of verified facts from named verifiable sources . . . . . . . .

  • Tony||

    I can see why the other justices think Gorsuch is annoying.

  • Rev. Arthur L. Kirkland||

    I expect Justice Gorsuch to be a largely standard-issue right-winger and therefore am not disappointed when his decisions are those of an authoritarian, big-government cop succor.

  • CE||

    But they aren't in this case. He wants an even more liberal view of the 4th amendment. He's on your side, I think.

  • AJD||

    No he doesn't! I think a good way to explain why he doesn't is to compare him with Scalia, who actually did want an even more liberal view of the 4th Amendment. Scalia joined (or wrote) *both* opinions based on Katz and opinions based on a property rights view. Gorsuch wants to throw away Katz and rely *exclusively* on a property rights view.

    Under Scalia (and the majority of the court), you can win two ways. Show you have a reasonable expectation of privacy *or* show that you have property rights. Under Gorsuch, you can only win by showing that you have property rights.

  • Gaear Grimsrud||

    If you'd bothered to read his opinion you would've been disappointed to find he is in fact not an authoritarian, big-government cop succor. But it's easier to just make an ass of yourself. Carry on asshole.

  • Rev. Arthur L. Kirkland||

    He wondered why 'tracking location' should be considered so damned private. He voted with Justice Alito on a policing case, and the only remotely 'libertarianish' explanation would be ignorance of the distinction between concurrence and dissent.

    His ostensibly pro-liberty reasoning did not persuade me; nor did it persuade a single colleague.

    Justice Gorsuch voted with Justice Alito (among other government-pleasing right-wingers) to provide sweet, sweet succor to Fourth Amendment-disdaining police. You can defend him as you wish, much as Trump fans claim he neither a bigot nor an appeaser of bigots, but don't expect sensible people to be persuaded.

  • ||

    I doubt you or your colleagues read the dissent or actually understood it.

    Sensible people don't need to be persuaded, but nonsensical ones like you do, but will refuse to understand.

  • Jickerson||

    As someone who is staunchly in favor of individual liberty and strict limits on the government's power, I'm not sure why I should be happy about Gorsuch dissenting in a case where the government's power is actually being limited to some small degree.

  • chemjeff radical individualist||

    I certainly like the end result of this decision but I share a little bit of Ken's concerns about what this means going forward.

    Suppose, hypothetically speaking, I hate my privacy and willingly share all of my information with all of my technology providers. (Not too hypothetical with some social media users!) The Fourth Amendment prevents against 'unreasonable' searches. But if I have already put all of my info out there, then implicitly I'm saying that it's not unreasonable for someone else to search my info. I freely gave away my 'reasonable expectation of privacy'. Should the police have to get a search warrant before looking up my Facebook activity?

  • Z565||

    Do you lose a privacy expectation because you invite people into your home? Just because you share your private areas with some doesn't mean you intend to share the information with others.

  • EscherEnigma||

    Do you lose a privacy expectation because you invite people into your home?
    To a degree, yeah.

    For example, police can't go into your home and take pictures of your mantle without a warrant or permission.
    But if Davey already has pictures of your mantle, he doesn't have to ask you for permission before he hands those pictures off to the cops.

  • Jickerson||

    Should the police have to get a search warrant before looking up my Facebook activity?

    If it's not in plain public view (as in, literally anyone can access it by design, which wasn't the case here), then sure. The third party doctrine is completely unworkable in a society where people routinely give up their information to companies in order to conduct normal business.

    I don't see why it's such a big deal to make the government go through a bunch of hurdles. I'm certainly not going to be crying over it.

  • Rev. Arthur L. Kirkland||

    The votes for freedom came from Sotomayor, Kagan, Breyer, Ginsburg, and -- playing for the good guys, against type -- Roberts.

    The authoritarian cop succors were Alito, Kennedy, Thomas, and Gorsuch.

  • Citizen X||

    You misspelled "sucker" and didn't read Gorsuch's dissent. Which, true, probably should have been a concurrence, along the lines of "Yes, but..."

  • Rev. Arthur L. Kirkland||

    Succor was intended and correct.

    I read Gorsuch's dissent. I also understand the distinction between concurrence and dissent. Do you contend Justice Gorsuch does not understand the difference?

  • bevis the lumberjack||

    "I read Gorsuch's dissent. I also understand the distinction between concurrence and dissent. Do you contend Justice Gorsuch does not understand the difference?"

    If you did actually read it (which I doubt), then you clearly didn't understand what you were reading. Gorsuch clearly argues for a more expansive protection of our 4th Amendment rights involving data held by third parties. He's dissenting because the majority decision didn't protect civil liberties enough.

  • Rev. Arthur L. Kirkland||

    He argues for a different approach -- one that is not necessarily in crackpot territory, but one that plainly was found to be persuasive by every other justice. He does not argue for 'more expansive protection.' He didn't even rule for the level of protection provided by five of his colleagues.

  • ||

    He argues for a better approach, which you clearly didn't understand.

  • loveconstitution1789||

    Gorsuch argues for a protection of 3rd party records based on property rights that people can control rather than some judge making exceptions for privacy rights.

    Literally Gorsuch was arguing for bettter protection of rights that the majority was not willing to give.

  • bevis the lumberjack||

    Seriously.

    Gorsuch: "it seems to me entirely possible a person's cell-site data could qualify as his papers or effects under existing law."

    Reason: "his dissent reads much more like a concurrence. It seems clear that while Gorsuch agreed with the majority that Carpenter deserved to win, he strongly disagreed with them about how the win should have happened."

    Kirkland "Statist!! Authoritarian!!! I expected him to be that and he is despite what his decisions say!!!"

    You're the one always talking about elitist crap and how everybody but you is a Neanderthal cretin. Apparently comprehension of what one reads isn't a sign of intelligence in your world.

  • Z565||

    Yep

  • EscherEnigma||

    Except that regardless of how it reads, it is still a dissent.

    I don't think it's unfair to take the man at his word that he is dissenting from the majority, not just in reasoning, but also in outcome.

    Unless you think he is unaware that he can write a concurrence of his own, agreeing with the outcome but disagreeing on reasoning?

  • bevis the lumberjack||

    I'm pretty sure that Gorsuch understands the workings of the USSC better than I do.

    And I think you're getting a little caught up in semantics. Whether it was a concurrence or a dissent really doesn't matter. What matters is what his opinion means as to the state of their interpretation of the 4A.

    Let's say that instead of writing their own opinion the five majority justices had simply signed off on Gorsuch's opinion so we'd have ended up with a 6-3 majority with Gorsuch authoring the decision. Would civil liberties advocates be pleased in that event or not? Certainly they'd have been pleased. So to call Gorsuch a statist thug because of the outcome of this case is simply trying to fit reality within one's pre-conceived political bias.

  • EscherEnigma||

    I'm pretty sure that Gorsuch understands the workings of the USSC better than I do.


    Then I hope you'll forgive me for taking him at his word over yours regarding whether he dissented or not.

  • bevis the lumberjack||

    "Then I hope you'll forgive me for taking him at his word over yours regarding whether he dissented or not."

    And it's totally swell for you that you can divine what he said without reading what he wrote.

    Gorsuch: "I think that citizens' information held by third parties should have more privacy protection than this this decision allows for. We should have gone farther, but unfortunately the plaintiff here didn't argue that case."

    Kirkland and EscherEnigma: "See!!! He's a Nazi statist thug!! And he's not even from one of the coasts!!!! We were right all along!!!! Stolen Supreme Court seat!!! Why should we even read his writings - we understand what he means without doing so!!!!"

  • Rev. Arthur L. Kirkland||

    When you are not trying to depict Justice Gorsuch as a libertarian, do you propose Donald Trump as a great man?

    Carry on, clingers.

  • ||

    When you are not trying to depict people as the opposite of what they are, do you propose that Hillary Clinton is a great woman?

    Carry on, clingers.

  • EscherEnigma||

    @bevis the lumberjack

    And it's totally swell for you that you can divine what he said without reading what he wrote.


    I takes divination to read a literal dissent as not really a dissent.
    It does not take divination to read a literal dissent as a dissent.

    As for the name-calling you are attributing to myself, all I have done is point out that he dissented. If you think that's equivalent to calling someone a "Nazi statist thug", then the err lays with Gorsuch, who dissented, and not myself, who is merely pointing out that he did, in fact, dissent.

  • Rev. Arthur L. Kirkland||

    Whether it was a concurrence or a dissent really doesn't matter.

    He ruled for the government. Results matter.

  • bevis the lumberjack||

    And of course Kirkland has to bring Trump into this, because politics.

    Escher, if I misread you I apologize. I took it that you were defending Kirkland's mindless drivel.

    Let's try it this way, for either one of you.

    The majority ruled that the cops were not entitled to Carpenter's phone location data because 4A.

    The three non-Gorsuch dissenters ruled that the cops were entitled to Carpenter's data because of prior SC precedent.

    Is this statement true or false: Gorsuch in his dissent believed that the cops should have been entitled to Carpenter's phone location data.

    If you believe the answer to be "true", then please quote from the point in his opinion where he says this, because in his opinion he does say that our data held by third parties should be considered to be among our papers and possessions, meaning that the cops would need a warrant to get their hands on them. So please, using Gorsuch's opinion, tell me where he favors the government in his ruling.

    Kirkland, of course, won't try to answer this because despite all of his babbling about science and enlightenment he's ultimately just a political loony and sees everything through that prism.

  • Rev. Arthur L. Kirkland||

    Are you contending he is too ignorant to recognize that he could have 'concurred in the result, but not join the reasoning?'

    He dissented. That favored the government, not your assertions.

  • ||

    Are you contending you know more than him?

    He dissented, but did not favor the government.

  • Rev. Arthur L. Kirkland||

    You seem to be having difficulty keeping the parties, the votes, and the result straight.

    Hunch: Homeschooling?

  • Jickerson||

    What's wrong with Homeschooling, exactly? Our school system is an unmitigated disaster, so it's not hard for a homeschool to be far superior to it in terms of the quality of education provided. In fact, that is almost always the case.

    So what's your point?

  • loveconstitution1789||

    He dissented from the majoritY that did not give The People enough protection of their 3rd party records.

  • JFree||

    Let's say that instead of writing their own opinion the five majority justices had simply signed off on Gorsuch's opinion so we'd have ended up with a 6-3 majority with Gorsuch authoring the decision. Would civil liberties advocates be pleased in that event or not? Certainly they'd have been pleased

    Let's say that only Roberts signed off on Gorsuch's opinion. The decision would have been REVERSED - along the usual partisan lines - and quite obviously most civil liberties advocates would be pissed not pleased.

    But I am still quite certain that those who are somehow contorting Gorsuch's opinion into the opposite of what it is would find a way to contort a decision that went the other way into some great leap forward in constitutional rights.

  • ||

    Gorsuch would have also had a vote for freedom.

  • Nevin Kamath||

    Thanks for the analysis!

  • josh||

    Gorsuch's dissent is the best kind of dissent.

  • Rev. Arthur L. Kirkland||

    A crackpot-territory outlier -- no one agreed with him -- who ruled for the government and against freedom?

    Best?

    Is that like Melania's (or was it Ivanka's) 'be best ' rubbish?

  • ||

    A good outlier, over your head, who ruled for freedom.

    Best!

  • Rev. Arthur L. Kirkland||

    Do you understand how cases are resolved? Do you understand that Gorsuch voted for the government in this case?

    Are you a lawyer?

  • Left Libertarian||

    But but Gorsuch said that if unicorns are real then he would totally vote in favor of Carpenter. See Gorsuch is more based than that commie Sotomayora.

  • hpearce||

    I'm not convinced people have a right to privacy over information that is or should be known when buying the product

    What about tracking people in public by following them ?

  • CE||

    Pretty soon the feds will ban invisibility cloaks.

  • dpbisme||

    Damn, it hurts my heart to have to agree with the LIBTARDS on this one... Get a warrant next time you idiots... I mean really it appears he was a suspect already.

  • Rockabilly||

    Why isn't James Clapper in prison?

  • Left Libertarian||

    So will this help Carpenter or no? Im guessing the 7 days allowance of tracking information was so that Carpenter doesnt get out of jail. Also Gorsuch voted against this no matter how hard you make excuses for him he was on the wrong side.

  • Left Libertarian||

    So will this help Carpenter or no? Im guessing the 7 days allowance of tracking information was so that Carpenter doesnt get out of jail. Also Gorsuch voted against this no matter how hard you make excuses for him he was on the wrong side.

  • loveconstitution1789||

    Gorsuch was on the side for MORE protection of 3rd party records.

  • PG23COLO||

    Damon Root wrote: "the importance of today's ruling in Carpenter v. U.S. should not be underestimated."

    Actually, the importance of the decision will be hard to notice. Law enforcement can easily get a warrant to get cell site location records if they want it. There is almost always a compliant judge available to sign a warrant application,no matter how little merit there is in the application.

    The Carpenter decision does not protect digital privacy re the government monitoring your phone or internet activity. The government can still get pen register authority by telling a court they think that tracking a person's phone or internet use will help in an ongoing investigation. No need to establish probable cause. Tracking all of your internet or phone activity without a warrant is still permitted and still done every day.

    Carpenter is not likely to see any benefit from the case either, as the officers involved in his investigation were following "well-settled legal precedent", thus their search will likely be found not to violate Carpenter's 4A rights, since they reasonably relied on that precedent. The evidence will not be suppressed, and his conviction will likely stand, based on the "good faith exception" to the Warrant Clause.

    The 4A sounds good on paper, but, like nearly all of the rights described in the Bill of Rights, means little in practice, because legislators, courts, and cops don't want it to get in the way of good police work.

  • Left Libertarian||

    It will open the door for suppressing evidence in alot of cases I believe. More so than Jones because police find it way easier to track you thru your phone than thru an installed gps device in your car. Will it keep the NSA, FBI and other 3 letter boys from snooping thru your digital devices? Nope they will keep doing that in secret, they dont even need to bring charges to you they can literally snope on you for ever just for kicks which is even scarier when you think about it.

  • bertwest||

    It's a narrow win. But a win for citizen's rights is a win, and I'll take it.
    I'm appalled that our Supreme Court decisions always favor giving our government the crowbar along with the permission to use it.
    We, the people, need to get that crowbar back into our hands, where it was intended to be positioned.
    Selecting responsible candidates instead of the ones thrust in front of us, then voting them in is the solution. This is far easier said than done, but not an impossibility.
    We the people do not take an active enough role in our system of self governance.

  • Sanjuro Tsubaki||

    OK, so they cut the head off of a chicken, and it headlessly stumbled onto "Victory for libertarians" instead of "Victory for autocrats" this time. When are they going to make a ruling on public employee unions?

  • I am the 0.000000013%||

    Assuming the assertion made above that whether it's labeled a dissent or concurrence is irrelevant, his choosing dissent was well done because it's increased the discussion of his points manifold.

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