The Supreme Court today grappled with whether it should require law enforcement agents to get a warrant based on probable cause before obtaining historical cell-site location information (CSLI) or whether the government should continue to simply be able to get such data by meeting a lower standard.

The justices heard oral arguments this morning in the latest case that centers on whether technological advances necessitate a change to Fourth Amendment legal principles to protect the privacy of Americans.

In their questioning and comments, some justices appeared willing to require a warrant based on probable cause for CSLI, while others seemed more skeptical of the arguments of the petitioner.

The current case, “Carpenter v. United States” (case 16-402), centers on whether the government violated the Fourth Amendment when law enforcement authorities obtained more than four months of CSLI for serial robbery suspects in the Detroit area. Authorities obtained records for 127 days for suspect Timothy Carpenter that revealed 12,898 location data points.

After being convicted, Mr. Carpenter appealed to the Sixth Circuit Court of Appeals (Cincinnati). That court ruled 2-1 that a warrant is not needed under the Fourth Amendment for the government to obtain access to historical CSLI.

But supporters of Mr. Carpenter’s case say individuals have a reasonable expectation of privacy in their longer-term historical CSLI. Pre-digital cases concerning the third-party doctrine should not govern this case, they say.

But the Justice Department argues that the government’s acquisition of cell-site records from wireless service providers “did not constitute a Fourth Amendment search” because there is not a legitimate expectation of privacy in such third-party business records.

During this morning’s oral argument, Nathan Wessler, a staff attorney for the American Civil Liberties Union’s Speech, Privacy, and Technology Project who represented Mr. Carpenter, argued that “the collection of this information is a search, as it disturbs people’s long-standing, practical expectation that their longer-term movements in public and private spaces will remain private.”

He likened the facts of the case to those in a 2012 Supreme Court decision in “United States v. Jones,” in which the justices ruled that the government’s attachment of a Global Positioning System device to a person’s vehicle and its use of the device to monitor the movements of the vehicle constituted a search under the Fourth Amendment (TR Daily, Jan. 23, 2012).

Justice Samuel A. Alito Jr. asked Mr. Wessler how he would distinguish the “Carpenter” case from “United States v. Miller,” a 1976 case involving banking records in which the court held that the records were business records and not the private papers of an individual.

“Miller involved more limited records, certainly they could reveal some sensitive information, but more limited records and, as this court held, they were voluntarily conveyed in that they were created by the passing of negotiable instruments into the stream of commerce to transfer funds,” Mr. Wessler replied.

He also said that the “Carpenter” case is different than “Smith v. Maryland,” a 1979 case in which the court ruled that obtaining telephone numbers from a provider did not constitute a search under the Fourth Amendment while getting information on the content of communications did.

Justice Alito asked why CSLI is “more sensitive than bank records,” which he noted can show what periodicals a person subscribes to, which hotels he stays in, and what entertainment venues he visits.

“Particularly because the information in the bank records that Justice Alito referred to are not publicly known,” Justice Anthony M. Kennedy added. “Your whereabouts are publicly known. People can see you. Surveillance officers can follow you. It seems to me that this is much less private than … the case that Justice Alito is discussing.”

Justice Kennedy also complained that Mr. Wessler gave “zero weight in your arguments to the fact that there is some protection” for CSLI because of the need for law enforcement to get authorization from a magistrate.

Mr. Wessler got considerable pushback from justices to his suggestion that law enforcement should have to get a search warrant to obtain CSLI for any contiguous period longer than 24 hours, although he also said that “we don’t think the court needs to … draw a bright line here, to define exactly where the line between short and long term is.”

“Now, suppose what was sought here was the CSLI information for the day of each robbery, just one day, the day of each robbery. Does that qualify as short term in your view that would not violate the Fourth Amendment?” Justice Ruth Bader Ginsburg asked.

“So what’s the difference between a tower dump and targeting a particular individual?” asked Justice Sonia Sotomayor. “Let’s say an anonymous call came in that said John X or John Doe was … the robber?”

“I want to understand the … basis for the 24-hour, or however long you want it to be, exception,” said Chief Justice John G. Roberts Jr. “It seems to me if there’s going to be protection extended to the information, it has to involve some compromise of the third-party doctrine, and if that is altered, I don’t see why it wouldn’t also apply to, you know, one day of information.”

Chief Justice Roberts added, “What is the line we’re drawing? It seems to me the line is between information to which the authorities have access and information to which they don’t. I don’t know why we’re bothering about a line between six hours, three weeks, whatever.”

“What we are trying to advance is a … suggestion to the court that takes into account the rationale of the concurrences in ‘Jones’ and that accords with people’s reasonable expectation that although police could have gathered a limited set or span of past locations traditionally by canvassing witnesses, for example, never has the government had this kind of a time machine that allows them to aggregate a long period of people’s movements over time,” Mr. Wessler replied.

Justice Sotomayor also suggested that individuals might expect their location to be searched by law enforcement at particular times, but they don’t expect their locations to be inspected for 127 straight days.

Justice Kennedy said that “if we’re going to talk about normal expectations and we have to make the judgment, it seems to me there’s a much more normal expectation that businesses have your cellphone data. I think everybody, almost everybody, knows that. If I know it, everybody does.” He distinguished that situation from law enforcement following an individual for 127 straight days.

In response to a question from Justice Elena Kagan, Mr. Wessler said that wireless technology has improved since Mr. Carpenter was arrested in 2011 and can now pinpoint the locations of people much more accurately.

Justice Stephen G. Breyer suggested he might support requiring a warrant for location information, noting that the court also imposed greater protections for medical diagnostic records.

Mr. Wessler said that “in future cases in the lower courts and perhaps back before Your Honors, it would be relatively straightforward to define discrete categories of information that may be protected.”

He also said that “lower courts have been struggling mightily to apply ‘Miller’ and ‘Smith’ to highly sensitive digital-age records. And as to these historical location records, the five courts of appeals to address this have generated 20 majority concurring and dissenting opinions, many of them virtually  begging this court to provide guidance for how to protect these sensitive digital records that the court simply could not have imagined four decades ago.”

Deputy Solicitor General Michael Dreeben said, “The technology here is new, but the legal principles that this court has articulated under the Fourth Amendment are not. The cellphone companies in this case function essentially as witnesses being asked to produce business records of their own transactions with customers.” He also stressed that the “Carpenter” case “involves very generalized cell sector information,” not pinpointing a person in his bedroom by using GPS data from a cellphone. He also said the present case was not similar to the “Jones” case, which involved active government surveillance through a GPS device.

“So the question is why that should make more of a difference than the obvious similarity between this case and Jones? And the obvious similarity is that, in both cases, you have reliance on a new technology that allows for 24/7 tracking,” Justice Kagan asked.

“The Constitution protects the rights of people to be secure. Isn’t it a fundamental concept, don’t you think, that that would include the government searching for information about your location every second of the day?” Justice Sotomayor asked.

Mr. Dreeben said Congress is the proper venue to address “rapidly changing technology and privacy expectations …”

Justice Sotomayor said that “the fact that Congress recognized how sensitive this information is, is quite laudatory, but did it understand the measure of the constitutional requirement of what protections should be given to that?”

Justice Neil M. Gorsuch asked Mr. Dreeben numerous questions about whether an individual has a property right to his location information. Mr. Dreeben said he doesn’t.

Justice Alito seemed to agree. “I was trying to think of an example of a situation in which a person would have a property right in information that the person doesn’t ask a third-party to create, the person can’t force the third-party to create it or to gather it. The person can’t prevent the company from gathering it. The person can’t force the company to destroy it. The person can’t prevent the company from destroying it,” he said.

Justice Breyer said he could see the court ruling that such “highly personal” location information is an exception to the third-party doctrine, and he asked Mr. Dreeben for his view. Mr. Dreeben said that “the basic principle here in the Fourth Amendment is how the government acquires information matters, not the sensitivity of the information.”

On rebuttal, Mr. Wessler said the court in “Riley v. California,” in which it ruled that police searches of digital information on the cellphones of people they have arrested require search warrants (TR Daily, June 25, 2014), clearly said “that the historical pedigree of older Fourth Amendment doctrines does not automatically determine the outcome in the digital age.”

Justice Alito replied that “this would be revolutionary, to fundamentally change the understanding of the application of the Fourth Amendment to subpoenas.”

Mr. Wessler also said that “this is not an area where the court should pause and wait for Congress to act. … This is an area where, as the court recognized in ‘Riley,’ people’s use of this technology is well-settled and only becoming more pervasive over time.”- Paul Kirby, paul.kirby@wolterskluwer.com

Courtesy TRDaily