First Thoughts on Carpenter v. United States

A big case. Here's an ongoing Q&A, which I will add to through the day.


The Supreme Court has handed down its long-awaited decision in Carpenter v. United States. The opinion is only an hour old as I start to write this, but I wanted to offer some initial thoughts that I will also cross-post at Lawfare.

I'll do it in the form of a Question and Answer, asking questions you may have and offering answers as best I can. Also, rather than wait to the end and post all of my thoughts at once, I'm going to post over time. I'll start with a few basic questions and add more over the course of the afternoon.

1) What Did the Court Rule?

The Court ruled that access to a person's historical cell site records—or at least 7 days or more of cell site records—is a Fourth Amendment search because it violates the person's "legitimate expectation of privacy in the record of his physical movements." The Court also held that accessing those records requires a warrant.

2) Who Wrote the Opinion, and What Was the Vote Breakdown?

The Chief Justice wrote the opinion. It was a 5-4 decision, with the Chief joined by the four liberal-leaning Justices (Ginsburg, Breyer, Kagan, and Sotomayor). The four remaining Justices dissented (Kennedy, Thomas, Alito, and Gorsuch). Each of the four dissenters wrote their own dissents, which may explain why the opinion took so much time.

3) Is There a Clear Majority Opinion, or Were There a Bunch of Concurrences?

There's a clear majority. The case was 5-4, but none of the Justices who joined the majority wrote separately and all joined the opinion in full. The only separate opinions were dissents.

4) Okay, So What Was the Reasoning of the Majority Opinion?

Relying on the concurring opinions in United States v. Jones, the Court holds that a person has "reasonable expectation of privacy in the whole of their physical movements." Access to historical cell site records violates that reasonable expectation of privacy because it is a "sweeping mode[e] of surveillance" that gives the government the power of "near perfect surveillance, as if it had attached an ankle monitor to the phone's user." It is "tireless and absolute surveillance." The surveillance is "detailed, encyclopedic, and effortlessly compiled." It "provides an all-encompassing record of the holder's whereabouts." As a result, it violates the reasonable expectation of privacy people have in their physical movements from the Jones concurrences.

5) How Is Accessing Historical Cell-Site Records "Absolute Surveillance"? It's Not Precise, and It's Only Generated When A Call is Made, Right?

This is one of the most interesting aspects of the opinion. Instead of focusing on the facts of this case, the Court seems more interested in where the technology is thought to be going. The record in this case indicates that the records only where precise to a range of 0.5 to 2 miles, and that records where only generated when a call was actually placed. It just reveals the neighborhood the phone was in when a call was made. But the Chief Justice's opinion presents the technology as vastly more invasive and detailed than the record indicates. It is absolute perfect surveillance, in the Court's vision, like a GPS device around a person's ankle.

In response to the dissent's pointing out the record, the Chief Justice says we have to take into account where the technology is going. "The accuracy of CSLI is rapidly approaching GPS-level precision," the Chief Justice predicts, and the Court has to adopt a rule in light of what the technology will look like then. In effect, the technology isn't actually perfect and absolute surveillance now, but the Justices are confident that it is going to be that eventually.

6) Does Any Accessing Historical Cell-Site Records Count as A Search? Or Is Short-Term Warrantless Surveillance Permitted?

We don't know. Regular readers will recall the debate over the mosaic theory, by which perhaps short-term surveillance is not a search but long term surveillance is, on the thinking that long-term surveillance lets the governent create a mosaic of a person's life. That was key to the Jones concurrences. The Court leaves open that there may be mosaic-based short-term vs. long-term distinctions for cell-site collection: "[W]e need not decide whether there is a limited period for which the Government may obtain an individual's historical CSLI free from Fourth Amendment scrutiny, and if so, how long that period might be. It is sufficient for our purposes today to hold that accessing seven days of CSLI constitutes a Fourth Amendment search."

7) Might This Reasoning Be Based on Equilibrium-Adjustment?

Indeed! I have written about how the Supreme Court often engages in equilibrium-adjustment when new technology threatens the balance of government power. If technology gives the government too much new power that can be abused based on old rules, the Court expands legal protection to restore old levels of power and limit abuses. On the flip side, if technology threatens to narrow government power too much that can unduly limit the government's ability to solve crimes under old rules, the Court shrinks legal protection to restore old levels of power and ensure the government can still solve enough cases.

In Carpenter, the Chief Justice is very clear that this what is going on. Throughout the opinion, he roots his analysis in the idea that cell-site surveillance is a new tool that gives the government new power that can be abused, and that the law must change course to ensure that the government doesn't get too much power from a mechanical application of the old rules.

Here's The Chief Justice in the conclusion:

As Justice Brandeis explained in his famous dissent, the Court is obligated—as "[s]ubtler and more far-reaching means of invading privacy have become available to the Government"—to ensure that the "progress of science" does not erode Fourth Amendment protections. Olmstead v. United States, 277 U. S. 438, 473–474 (1928). Here the progress of science has afforded law enforcement a powerful new tool to carry out its important responsibilities. At the same time, this tool risks Government encroachment of the sort the Framers, "after consulting the lessons of history," drafted the Fourth Amendment to prevent. Di Re, 332 U. S., at 595

There's another revealing passage when the Chief Justice is responding to Justice Alito on what the standard should be for accessing the records, assuming that it is a search. After going through some legal analysis, the Chief Justice sort of stops and says (without using the label), but this is equilibrium-adjustment! Here's the paragraph:

JUSTICE ALITO overlooks the critical issue. At some point, the dissent should recognize that CSLI is an entirely different species of business record—something that implicates basic Fourth Amendment concerns about arbitrary government power much more directly than corporate tax or payroll ledgers. When confronting new concerns wrought by digital technology, this Court has been careful not to uncritically extend existing precedents. See Riley, 573 U. S., at ___ (slip op., at 10) ("A search of the information on a cell phone bears little resemblance to the type of brief physical search considered [in prior precedents].")

The new technology is a "new phenomenon," and an "entirely different species" of record. Old rules don't apply. Instead, the Court goes back to "the critical issue" of "basic Fourth Amendment concerns about arbitrary government power" that are "wrought by digital techology." In other words, equilbrium-adjustment.

8) Does This Reasoning Apply Just For Physical Location Tracking, Or Does It Apply More Broadly?

That's the big question. On one hand, the reasoning of the opinion is largely about tracking a person's physical location. The opinion takes as a given that you have a reasonable expectation of privacy in the "whole" of your "physical movements." The Court has never held that, so it's sort of an unusual thing to just assume! But the Court seems to be getting it mostly from Justice Alito's Jones concurrence, and the idea, as Alito wrote in Jones, that "society's expectation has been that law enforcement agents and others would not— and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual's car for a very long period."

The opinion is mostly rooted in that idea of tracking physical location, and in particular the idea of near perfect and total surveillance that allows the government to monitor us as if we had GPS trackers stapped to our ankles. Near the end, the Chief Justice adds a very interesting paragraph saying that the opinion is narrow. It's worth reading:

Our decision today is a narrow one. We do not express a view on matters not before us: real-time CSLI or "tower dumps" (a download of information on all the devices that connected to a particular cell site during a particular interval). We do not disturb the application of Smith and Miller or call into question conventional surveillance techniques and tools, such as security cameras. Nor do we address other business records that might incidentally reveal location information. Further, our opinion does not consider other collection techniques involving foreign affairs or national security. As Justice Frankfurter noted when considering new innovations in airplanes and radios, the Court must tread carefully in such cases, to ensure that we do not "embarrass the future." Northwest Airlines, Inc. v. Minnesota, 322 U. S. 292, 300 (1944).

(As an aside, isn't it interesting that collection of cell-site records is a new-fangled surveillance methid but security cameras are merely "conventional techniques and tools"? Why is that? Because people can see cameras but not cell sites? But I digress.) In a footnote, he adds in response to a dissent that "we "do not begin to claim all the answers today, and therefore decide no more than the case before us." Perhaps even more significantly, the Chief elsewhere says that it will be "the rare case where the suspect has a legitimate privacy interest in records held by a third party," and that in "the overwhelming majority of investigations" there will be no Fourth Amendment protection.

So you could look at that language and say tha this is a narrow opinion only about perfect location tracking by Big Brother.

On the other hand, there's lots of language in the opinion that cuts the other way. Although the Court "decides no more than the case before us," it also recasts a lot of doctrine in ways that could be used to argue for lots of other changes. Its use of equilibrium-adjustment will open the door to lots of new arguments about other records that are also protected. For example, what is the scope of this reasonable expectation of privacy in the "whole" of physical movements? Why is there? The Jones concurrences were really light on that, and Carpenter doesn't do much beyond citing them for it: What is this doctrine and where did it come from? (And what other reasonable expectations of privacy in things do people have that we didn't know about, and what will violate them?)

In addition, Carpenter's view of Miller and Smith is narrower than the opinions in Miller and Smith suggest. Carpenter suggests that the third-party doctrine is less of the bright-line rule that the cases suggest and more of a fact-specific standard. At the very least that is going to invite a boatload of litigation on how far this new reasoning goes.

(9) What's the Status Of the Third-Party Doctrine?

It lives, but there is an equilibrium-adjustment cap on it. The old understanding was that the third-party doctrine is a bright-line rule: When you voluntarily disclose information to someone, whether to an undercover officer or a business you're working with, you don't have Fourth Amendment rights in the recipient's copy of that information. Chief Justice Roberts says that the third-party doctrine is more limited than that.

As I read him, the Chief seems to be saying that there is an equilibrium-adjustment limit on the third-party doctrine. Once the third-party doctrine starts to give the government massive new powers, the third-party doctrine may no longer apply. Here's the key passage:

There is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today.The Government thus is not asking for a straightforward application of the third-party doctrine, but instead a significant extension of it to a distinct category of information.

Part of the thinking here is an adoption of Carpenter's rhetoric in his brief that the third-party doctrine only "diminishes" an expectation of privacy. That's not what the cases say; the cases say that the doctrine entirely eliminates an expectation of privacy. But by adopting the idea that the third-party doctrine only "diminishes" an expectation of privacy, the Court effectively sets up a hierarchy: Because the information revealed by cell-site records collection is claimed to be vastly more revealing and sensitive than the records in Smith and Miller, and the surveillance is more pervasive, the third-party doctrine's diminishing of privacy still leaves a lot of privacy behind that is enough to satisfy the Fourth Amendment.

In effect, disclosure is enough to eliminate privacy when the records disclosed only involve a normal amount of privacy. But when the records are super private and pervasive, disclosure isn't enough to eliminate Fourth Amendment rights.

In his dissent, Justice Gorsuch suggests that this means that Smith and Miller are "on life support," but I don't see that in the majority. After all, the Chief says in his opinion that [w]e do not disturb the application of Smith and Miller." Rather, the idea seems to be that there's an equilibrium-adjustment limit on how far the Justices will take the third-party doctrine. At some point the surveillance is just too much to allow, and at that point the third-party doctrine doesn't apply. The facts of Smith and Miller were on one side of the line, and seven days of this technology crossed over to the other side.

What other technology and its uses might also cross it? We don't yet know.

(3rd set of questions posted at 4:42. More to come.)

NEXT: What Do Justices Gorsuch and Justice Breyer Have in Common?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Q: Is everybody in these cases now going to have to brief and prepare for an entirely separate property rights line of thinking, involving bailments and trespass and such, in order to win Gorsuch’s (and possibly Thomas’s) vote?

  2. I have noted in the past that the Supreme Court has left open the question of 24/7 surveillance when dealing with applications of the 4A in public places. Roberts expressly notes this though the full implications of his opinion will be left to further developments (e.g., he leaves open the question of surveillance cameras).

  3. “and that records where only generated when a call was actually placed. ”

    “only retained” might be a better way to put it, as the system does have to track your location in real time as long as your phone is on and within reach of a tower, in order to know where to direct any calls made to you. This information isn’t (Currently, so far as is admitted.) stored except on the occasion of a call, but that is easily changed.

    I said ‘so far as is admitted’ because I’m fairly confident that the NSA’s interception of of cell system data could record this real time location data if they want it.

    1. I’d argue, at least on the cell phone end, the costs to keep up with tons of utterly meaningless and useless data would not be worth it.

      1. Not very long ago the same was said about collecting email correspondence – massive amounts of data can now be stored (and more importantly, accessed in a timely way) due to improved capacity and bandwidth.

        Continuing improvements in those area plus CCTV and facial recognition software will soon take surveillance to a whole new level. Or is taking, I should say. Stewart Baker will no doubt approve.

  4. Has anything in the Court’s opinion or Gorsuch’s dissent caused you to rethink your support of a categorical 3rd party rule? (I like that Gorsuch responded directly to your argument, writing, “I confess I still don’t see it.”)

    I (still) think that the difference could have been split by the Court holding that the cellphone location data is not truly “voluntarily” conveyed. Roberts and Gorsuch kinda motion in that direction but I can see that is probably a can of worms that they think unnecessary to get into (instead relying on Katz or property interests, respectively).

  5. To the extent you intend to take questions from the peanut gallery, if you find time, could you address how you expect the exclusionary rule to be applied (both to Carpenter and in pending cases)? The Sixth Circuit (or the district court, given the opportunity) could apply Davis v. United States and hold that suppression isn’t warranted, couldn’t it?

  6. Gorsuch disappoints on this one.

    1. He dissented because the majority ruled based on reasoning that wasn’t argued before the court.

      1. Have to wonder if he would have swallowed his pride, altered the last two paragraphs of his opinion, and made it a concurrence in the judgment if the majority had one less vote.

        1. The good thing is that he does seem genuinely interested in protecting 4th Amendment rights, in contrast to Alito who is genuinely interested in the rights of law enforcement and prosecutors to get their man.

    2. Gorsuch disappoints on this one.

      He didn’t disappoint anyone who expected him to be a standard-issue right-winger.

      1. After reading all of the opinions, Gorsuch seems to promote an interpretation of the 4th Amendment that is the most protective of people’s rights. I’m not sure how that position could be characterized as “standard-issue right-winger.”

        1. He voted for the government, providing less freedom than five of his colleagues were willing to provide. He voted with Justice Alito on a policing case. His crackpot-territory rambling persuaded zero colleagues.

          I amend my observation. Somewhat bizarre right-winger who reached the right-wing result, as expected and intended by those who installed him.

          1. He wrote protecting freedom, and his amazingly logically argument will persuade at least four colleagues soon.

            He will not vote this way in the future, and only those in crackpot-territory believe differently.

            1. his amazingly logically argument will persuade at least four colleagues soon.

              Another faith-based argument masquerading as reasoned debate among adults.

        2. You have to read the opinion as if you were a standard issue leftist troll. (Which is to say, don’t bother to read the opinion, just opine yourself based on stuff pulled out of where the sun don’t shine.)

          1. That’s a fairly accurate description of RAK.

      2. Or people who don’t understand logic.

    3. Dude, read his dissent. He clearly states that he is dissenting because the result of this is an even more ludicrous standard of tests that make no sense and don’t follow from the original court ruling. He advocates for an even more Pro-4th standard that abolishes the “reasonable expectation” nonsense and returns to a test of who owns the property (which he then goes on to strenuously argue that you do not lose your ownership of property just because someone else is holding your property). I firmly believe that had his vote been necessary to clinch the case, he would have joined the concurrence with a partial dissent. Since it was not, he dissented so he could cleanly argue why the courts ruling flies in the face of current jurisprudence and further makes a mess our of 4th Amendment protections.

      1. He expressly wondered why tracked location should be considered so damned private — beyond government prying — then ruled for the government. I am not persuaded his odd, old-timey property analysis would be ‘more pro-Fourth Amendment.’ Not one of his colleagues appears to have found his argument persuasive. He voted with Justice Alito on a policing case.

        1. He questioned why it was private as an example of why privacy probably is not the right standard to invoke when establishing 4A rights. He then goes on to say “It seems to me entirely possible a person’s cell-site data could qualify as his papers or effects under existing law.”

          He is expressly stating that by regrounding 4A in property rights the court could have provided stronger protections without having to rely on ambiguous hand waving about ‘expectations of privacy’ that can morph based purely on a judges whim.

          1. “seems to me entirely possible” is a cop-out, and “under existing law” shows just how easy it would be for Congress to take it away.

            Gorsuch wants to do away with Katz, with the promise that maybe it’s possible that some of its protections could be shoehorned under property rights.

            But Katz is good law, and so far as I know the government did not ask for it to be overturned.

      2. And had he written a concurrence then you would be right, but he didn’t he wrote a dissent that held the government didn’t need a warrant to collect this data. It is absurd to argue that he wants a more protective rule, when he rule let the government win and this one did not.

        1. This defense of Justice Gorsuch is beginning to remind me of children who strive to explain why it is possible for a large old dude to clamber up and down hundreds of millions of chimneys — including some that do not exist — during a single night.

          1. This attack on Justice Gorsuch is beginning to remind me of children who strive to deny that they are tired while clearly displaying classic signs of being tired.

  7. In response to the dissent’s pointing out the record, the Chief Justice says we have to take into account where the technology is going.

    There’s also the problem that the location accuracy is different depending on where you are. In urban environments, the density of cells is much greater, and the accuracy is better (even aside from any technological changes in the future.) Are the Justices supposed to rule that “well, you need a warrant in the city, but not in rural areas?” Or is there supposed to be some handwaving that “the same increase in population density that causes more cell towers also makes it correspondingly more difficult to locate a particular person based on a given radius, so it all works out?” The latter is not entirely crazy.

    1. “The record in this case indicates that the records only where precise to a range of 0.5 to 2 miles” but the record in other cases right now, with the same technology would show much better precision.

  8. The notion that you only get tracked when your phone is “on,” likely should be interpreted to give the word “on” the meaning, “having a charged battery in it.” I always leave my phone off. I never give the number to anyone but family, to use during times when we are out together and separate.

    Otherwise, I turn the phone on to make a call, and turn it off immediately afterward. But on two occasions I have awakened in the small hours to find my phone on, a message on the screen saying “uploading,” and the keyboard locked out. I couldn’t turn it off by pressing the key. I had to remove the battery to interrupt whatever was going on. Don’t know what that was about, but I suggest it proves the phone company can find your phone when it’s “off.”

    Also, I will be particularly interested to hear Kerr’s comment regarding implications for so-called “StingRay,” technology, especially for uses such as this:

    For example, if visual surveillance is being conducted on a group of protestors, a StingRay can be used to download the IMSI or equivalent identifier from each phone within the protest area. After identifying the phones, locating and tracking operations can be conducted, and service providers can be forced to turn over account information identifying the phone users.

    Want a firearms registry? Just take a StingRay to the vicinity of a gun show. Would that be out now?

    1. Well, you wouldn’t get a “firearms registry” out of it. More of a “people who might own firearms registry”.

      1. The feds could get an owners registry already by just taking all the purchase records from all the dealers, then combine it with credit card company data. You’d miss a few people who just inherited guns and never bought a new one, or the REALLY paranoid ones who pay cash and only get them from people they know.

        The DOJ was caught using cameras to track license plates at gun shows a few years ago.

      2. To coin a phrase “close enough for government work”

    2. Many phones don’t actually switch off even when you power them down.

      If you want your phone to not emanate or receive any signals, this is a better option to use:

      Cell Phone Anti-tracking Anti-spying GPS Rfid Signal Blocker Pouch

      I have tried it and it works.

  9. Hmmm….

    It seems like this boils down simply to the difference between a subpoena and a warrant.

    The FBI obtained the subpoena and then got the 3rd party records–and I don’t think it makes a difference if the records were cell phone records or financial records.

    Cell phone records are somehow being given more protection which I don’t know why since–as admitted–they are currently rather vague for pinpointing a person’s location (or at least the phone’s location–who know if the person is also attached to the phone!).

    This wasn’t some general, sweeping dragnet–it was a specific investigation against a specific subject.

    Not sure this was the correct decision by the Supreme Court–and you guys know I don’t normally side with the conservatives.

    1. Looks like there is quite a difference. An actual search warrant is supposed to specify what and where pretty closely. The ‘court order’ that was actually obtained seems to have just said ‘cough up cell tower data for a week or so’.

  10. Regular readers will recall the debate over the mosaic theory,

    Yes. The most memorable part for me was when Judge Sentelle stated that calculus was false:

    “The sum of an infinite number of zero-value parts is also zero.”

    1. He’s right about that. Now the sum of an infinite number of infinitesimal values, OTOH…

  11. Hopefully, the third set of questions will address a question you left open in an earlier post: Based on your reading of the opinions, what do you think the best pun will be?

  12. It was the friends of lfreedom vs. the big-government authoritarians, with Chief Justice Roberts playing against type for the good guys.

    Thank you, Chief Justice Roberts.

    1. And then there’s those of us who actually read the opinion, including the dissents. Of particular reading, you should review Gorusch’s dissent in detail.

      Carry on, Tyrant.

      1. Do you mean concurrence, or did you accurately identify it as a dissent (which means Justice Gorsuch would have provide sweet, sweet succor to the Fourth Amendment-disdaining authorities if only he could have persuaded one more colleague to join him?)

        1. If Gorsuch got his way, law enforcement would have been royally screwed. In essence, they would need to get a warrant for every subpoena they try to send to third parties. Yes, he stated that in this specific case the defendant had waived an argument and he “reluctantly” would rule against him for that reason, but if he wrote the majority opinion, the general rule announced in his opinion would still be the new law of the land.

          1. If Justice Gorsuch got his way, the police would have won the case. He ruled they acquired the information in a manner compliant with the constitution.

          2. The petitioner “waived” an argument that was only relevant because Gorsuch effectively wanted to overturn Katz (something that could have equally been said to have been “waived” by the respondent).

    2. Kirkland, I tentatively estimate Roberts as a committed right-winger playing a long game. If you look at the cases where he sides for “the good guys,” one factor they share in common is minimal political valence. Then look at the cases where Roberts goes conservative. Those are the pro-corporate cases, and most of all, the actual political process cases. That could be interpreted as a very smart, very shrewd Roberts crafting a public image of unbiased jurisprudence, while activating his biases systematically in the cases which do most to advance his political preferences.

      I hope I’m wrong about that. I want to respect the guy, for some reason. Just hope the reason isn’t that he is winning me over with smart image management.

      1. I’m starting to think of Roberts as more of a swing vote than Kennedy lately.

        1. I don’t know about the comparison. Kennedy’s swings give off a vibe of quantum-randomness/whimsy. It’s hard for me to take him seriously.

          It’s hard to see Roberts as anything but purposeful. I have a better opinion of Souter than most commenters here seem to have. Roberts could end up as a new Souter. Or, I could imagine Roberts as a right-wing mastermind headed for unusual success.

          That combination of impressions?amounting to inestimable tendencies even after extended performance?suggests capacity coupled with skill at keeping motivations obscure. Or maybe, best of all, it suggests a fine judicial temperament at work. I expect it will take a lot more time to figure out Roberts.

      2. I hope I’m wrong about that.

        Oh, you are; there’s no question about that. First, there’s actually no such pattern in his decisions. Second, that’s not how the Supreme Court works.

        1. Always ready to be corrected. Show me the balance among his decisions on political process cases and political funding cases?which favor Ds, and which favor Rs. You could impress me a little by showing even one case which favored Ds.

          As for, “that’s not how the Supreme Court works,” well, you can’t dispose of the controversy you discuss by denying that it exists.

    3. And Gorsuch, who was the best of the bunch.

  13. Will this case be remembered by history as another attempt by Roberts to preserve the reputation of the court?

    1. How? Outside Law & Society circles, the Carpenter case has zero following, and might get a passing mention in the NYT.

    2. No. It will be remembered much like it’s predecessor, Kyllo v. US (2001).

      1. Huh….It just may be remembered like Kyllo (which I had to do a search to remember what it was). But do a survey of 4,000 in the U.S. and I bet less than 5% could tell you that the government can’t use thermal imaging without a warrant because of a Supreme Court decision.

        But to Soronel’s point, I don’t see how this does anything to help the reputation of the Court. I mean, *I* agree with it, and so do many others, but just based on a 5-4 decision there is likely just under half of America that doesn’t agree with it, and it worsens their reputation, or at best holds them neutral.

        These questions are admittedly tough, because rarely are their opinion surveys on the matter that tie directly to decisions, and which were taken before an after, and/or replicated with the same people from the original survey to see if their minds were changed by the Court playing Republican Schoolmaster.

        1. If not clear, I agree completely!

          1. Cool! Have a good weekend.

  14. “(As an aside, isn’t it interesting that collection of cell-site records is a new-fangled surveillance methid [sic] but security cameras are merely “conventional techniques and tools”? Why is that? Because people can see cameras but not cell sites? But I digress.)”

    I think that riddle is easily solved. As you observe, Roberts was very clear that this was a narrow ruling. Cameras are a vastly more limited and exclusively public (as far as the present discussion is concerned) method of surveillance – unlike tracking people in their homes and other indoor private places. An officer could theoretically review unending hours of recording from all over the city trying to recognize a person and determine their movements. But that’s obviously unrealistic and unreliable. There would be a question about the use of facial recognition software in conjunction with cameras.

    1. Or the officer could run the digital recordings through a facial recognition program while he went home (alive) and had dinner. Not all surveillance cameras are in plain sight; lots of companies have a few out in the open, while many other hidden cameras catch the crooks that thought they were avoiding the coverage.
      How about the stingray data collected by the cops. Not really third party data is it? Same for license plate readers? I see a few more cases wandering up to the SC before this is all over.

      1. I agree being in plain sight wouldn’t/shouldn’t be the test. But the facial recognition software could be a problem in the way the cell data at issue in today’s case is. Not saying it wouldn’t be trickier as a matter of doctrine!

        I think it’s clear that the police cannot do themselves what they are not allowed to do via a third party. The question remains whether some limited tracking (ie less than 7 days) could be permissable. Fourth Amendment cases shall continue until morale improves.

      2. The London police have officers that are “super recognizers” of faces. Essentially, like some people have a perfect memory of what they read, these officers have it for faces. Once AI can do the job cheaply and easily, ubiquitous cameras have a different effect, holistically.

        1. I’m a super recognizer! But not a cop. Was fascinated by the New Yorker article so took the testing and then got enrolled in the follow-up studies. I’m not sure what it all amounts to but it is interesting. Re AI, the costs are one thing but the insane data volumes are more why AI is necessary imho.

      3. I’m curious as to what will end up happening with license plate readers. If police cars have automated scanners that read everyone’s plate (theoretically to look for stolen vehicles), and maybe add them at intersections as well, you could be tracked everywhere.

        If they’re set up to purge all information after a reasonable period of time, I’d see it as far more reasonable (meaning alert the cops for a stolen car/warrant/amber alert/etc, but if nothing comes up purge after a week or something). I don’t know that the Constitution cares about how long they retain records, though.

    2. “An officer could theoretically review unending hours of recording from all over the city trying to recognize a person and determine their movements. But that’s obviously unrealistic and unreliable. ”

      unending hours? I routinely see it happen on TV in a matter of minutes.

    3. CrispyBacon: “Why is that? Because people can see cameras but not cell sites? But I digress.)””

      I believe it’s because standard video surveillance is largely done by property owners for their own protection (and typically on low-quality devices that produce murky images).

      Where it’s /going/ is toward the UK and Chinese models whereby the state can trace your movements from the time you leave your home until the time you return, day after day, without effort, with everything continuously downloaded to a central law-enforcement computer. The facial recognition software discussed here ups the ante, but it isn’t absolutely needed when you can simply follow an individual or car or whatever from one corner to the next.

      Of course, following cars this way has long been established. I imagine I’m not the only one here to have gotten a speeding ticket and (multiple) toll-road charges through the mail, addressed to me via my residence in a distant state and accompanied by photos of my out-of-state license plates.

      1. I imagine I’m not the only one here to have gotten a speeding ticket and (multiple) toll-road charges through the mail, addressed to me via my residence in a distant state and accompanied by photos of my out-of-state license plates.

        Actually, you are; they’re out to get you.

  15. It’s remarkable that the government will now need a warrant to subpoena documents from third parties in which the future defendant has a reasonable expectation of privacy.

    Say the government subpoenas Company A in an investigation and receives sensitive materials belonging to Company B that were provided to Company A in confidence. These documents help implicate Company B in some legal violation. The government then brings a civil enforcement action against Company B relying partly on those documents from Company A. This happens all the time in the antitrust realm, for example.

    Can Company B move to exclude at least some of those documents because it had a reasonable expectation that they would be treated as private and they were obtained without a warrant naming Company B? Most courts recognize that business entities have at least some Fourth Amendment rights, after all. And in any event, what about individual employees of Company B who are defendants in separate but related civil enforcement actions?

  16. “or at least 7 days or more of cell site records — is a Fourth Amendment search”

    Did they really hold [or left open the possibility] that a 6 day search is somehow not a Fourth Amendment search but 7 or more is one?

    That seems arbitrary.

  17. Oh, kudos for doing this. Fourth Amendment jurisprudence makes my brain hurt so no way am I wading into the case.

  18. re: #5 – In fairness, you should also note that the majority effectively said “If the precision is already good enough to support a criminal case (and the prosecutor clearly thought it did because he highlighted it during closing remarks), then it’s already good enough to deserve protection.” It wasn’t just speculative arguments about where CSLI is going.

    It’s also worth noting a) that the claim that location precision is only good to “0.5 to 2 miles” was just silly in all but the most rural settings and b) that the claim that a record is only generated when a call is actually placed was flatly false. As the majority noted, “Altogether the Government obtained 12,898 location points cataloging Carpenter’s movements?an average of 101 data points per day.” Even my teenagers can’t make that many calls a day.

  19. With location information being so vital, if (hypothetically) Verizon sells your location information to a 3rd party in a way you wouldn’t expect, has it committed a state privacy tort (e.g., intrusion upon seclusion)?

    If it hasn’t violated your reasonable expectation of privacy because of a fine-print contract allowing it to provide your location information to 3rd parties, how does provision of location info to government do so?

  20. Whether or not surveillance is forbidden by the fourth amendment falls into one of those “penumbra” things that some legal critics get all aghast at. 4A explicitly forbids “search” and “seizure” without a warrant, but does not contain the word “surveillance”. So, does surveillance fall under the heading of things that (unconstitutionally) infringe the right of a person to feel secure in their person, papers, etc.?

    At one end, we have a clear area. If a police agent stations themself in a public place, and observes the comings and goings from a place, and follows (but does not detain) a suspect, this is not a 4A violation. It is, however, fairly costly in man-hours. So law enforcement agencies have looked for ways to automate surveillance, so as to limit to costs (darn police unions and their demands for overtime pay!) The problem is a simple one: A LE agent knows (in theory) not to invade the privacy of suspects. When the suspect enters a private home, for example, the LEA waits outside, either for the suspect to come outside again or for a warrant to enter. Automated tools, however, may or may not interrupt their own actions to preserve privacy. This forces the courts to step in and rule that such-and-such technology is or is not allowed for use (without a warrant).

    We need a different approach. I just don’t happen to know what it is.

    1. See if this will do.

      1. If a police officer observes a place, and happens to see there a person whose conduct seems suspicious, and the officer consequently focuses for a time on that person?not a search.

      2. If a police officer identifies beforehand a suspect to be watched, and arranges to put himself in position to watch that suspect?a search.

      3. If a police officer resorts to technical tools of observation?such as telescopes, infrared sensors, photography?directed at a particular pre-selected person, or if the officer analyzes electronic signals and electronic devices related to a particular pre-selected person?a search.

      4. If a police officer resorts to technical tools of observation?such as telescopes, infrared sensors, photography?directed at persons at random, in public, or if the officer analyzes electronic signals and electronic devices related to persons at random, in public?not a search.

      This scheme suggests the defining characteristic of a search is the pre-selection of a target. It supposes also that invasion of private space by any means is generally proof of pre-selection.

      Does it work?

      1. 2. This isn’t a search.

        3. It’s a search with respect to infrared sensors if targeted at the house, but not a search re: telescopes, photography, etc.

        Your scheme isn’t the law, even under Carpenter, so I don’t know why we need to discuss it.

      2. “2. If a police officer identifies beforehand a suspect to be watched, and arranges to put himself in position to watch that suspect?a search”

        Dispensing with the “plain-view” doctrine is going to be fought pretty hard. I don’t see it happening, TBH.

        1. Right. I don’t expect it to happen.

          But I suggest that when the government pre-selects you to be a unique target of surveillance, that is as clear and consistent a marker of not being secure in your person as anyone is ever going to find. Require a warrant for that, and all these other complications melt away.

          Getting rid of the complications might be a good trade in exchange for the inconvenience of needing more warrants. As a bonus, you would get a pretty secure buffer against a police state, and against totalitarianism?without giving up a bit of government’s ability to surveil suspects for whom it can show probable cause. It’s pretty sinister, I suggest, when you empower government to surveil people to see if government can find probable cause.

          I know it’s just the kind of cockamamie notion you expect from legal laymen, but that’s me.

  21. 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.

  22. I had hope that Gorsuch would have carried on in the footsteps of Scalia in defending the Fourth Amendment. Unfortunately, that hope was misplaced. No way Scalia would have dissented here.

    1. The dissent is indeed irrational, but the contents of Gorsuch’s opinion is a strong case for the traditional interpretation of the 4th Amendment and strong protections. Gorsuch even refers to Entick – almost a taboo in the post-Boyd era. The next time the court will be presented with a 4th Amendment case (or the 5th, perhaps something about compelled decryption – Gorschuch criticizes the protection being offered only to “testimonial” acts), things can become interesting!

  23. Another very narrow ruling in the year of the narrow.

  24. The Court ruled that access to a person’s historical cell site records — or at least 7 days or more of cell site records — is a Fourth Amendment search because it violates the person’s “legitimate expectation of privacy in the record of his physical movements.” The Court also held that accessing those records requires a warrant.

    What expectation of privacy exists for travelling in public? I thought there was only an expectation of privacy inside of your own home. Once you leave, it is gone.

    And 7 days seems like an exceptionally arbitrary number.

    Also, the suspect didn’t keep their cell phone records. The cell phone provider did. Technically, they are THEIR records (speaking as an employee of one of those companies, if you want your records beyond what we provide you, such as verbiage of texts, we’ll tell you to get a subpoena), not the suspect.

    I like the limitation of police oversight and all … but I thoroughly dislike slipshod judicial theory.

  25. I fail to understand why Gorsuch didn’t write a separate opinion concurring with the verdict, but under a different rationale. His dissent totally reads like a concurrence. Perhaps he considers a narrow 5-4 ruling a better platform for re-visiting the issue in future?

    1. Ah, some internet searches indicate that Carpenter didn’t actually use the arguments presented in Gorsuch’s dissent. Hence it was just a procedural dissent, while Gorsuch would be willing to concur with the verdict if Carpenter just gave him an opportunity to do so.

  26. “The record in this case indicates that the records only where precise to a range of 0.5 to 2 miles, and that records where only generated when a call was actually placed. ”

    How can this be true? Your phone is constantly communicating with the cell towers, and it is all in the form of digital data packets, whether it is voice calls or other data, and your phone is constantly being located.

    1. I don’t know all the technical aspects, but just because your phone sends data constantly, it doesn’t mean that is Sprint or Metro PCS’s data. My Apple phone sends data to Apple and Google (per my request) that it doesn’t necessarily send to my telephone service provider. The government’s request, in this case, specifically limited itself to “cell-site sector [information] . . . at call origination and at call termination for incoming and outgoing calls”. If they had wanted more comprehensive, constant data collection, they might have needed to subpoena/request from others.

      1. Interesting, but I doubt this should be referred to so broadly as “cell site records,” then. More like “voice call origination data.”

        Even if the data doesn’t belong to Sprint, it is all transmitted by Sprint. Voice call content data also doesn’t belong to Sprint, but they keep the metadata record of the particular tower that received it. I don’t know why they couldn’t or wouldn’t do the same for other data, but apparently that metadata (if it exists) wasn’t at issue in this case.

        1. “…it is all transmitted by Sprint.”

          Not necessarily. It might be transmitted by my ISP, which is different than my phone service.

          1. When not connected to wifi, all of the data is going over the cell towers.

  27. I had a really difficult time understanding the majority opinion’s ultimate conclusion. A few questions:

    1. If Metro PCS volunteered the information to the FBI outside the scope of a Stored Communications Act request, still a search?

    2. If in a civil case one of the banks subpoenaed Metro PCS’s records in its suit against Carpenter, what then?

      1. 1. Helpful.

        2. If I handed the subpoenaed records over to the government, it just folds into a discussion of 1. What I’m curious about is that the decision in Carpenter seemed to say that the government’s “acquisition” of the records was a “search”. If it hinges on the governmental agent distinction, I can live with that. If it means that the government cannot acquire them at all from private parties, that seems problematic, because it would mean that I have greater rights to Metro PCS’s records (and by extension Carpenter’s records) than does the government. And I didn’t read the majority opinion in Carpenter as limiting it to requests under the SCA, necessarily.

Please to post comments