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U.S. Constitution
See other U.S. Constitution Articles

Title: Huge Win for Everyone With a Cellphone (and for the Fourth Amendment) at the Supreme Court
Source: Reason
URL Source: https://reason.com/blog/2018/06/22/ ... ects-warrantless-tracking-of-c
Published: Jun 22, 2018
Author: Damon Root
Post Date: 2018-06-23 09:11:00 by Deckard
Keywords: None
Views: 400
Comments: 18

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

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. "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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Begin Trace Mode for Comment # 9.

#1. To: Deckard (#0)

It arose after the after FBI obtained, without a search warrant, the cellphone records of a suspected armed robber named Timothy Carpenter.

Ruthless thugs usurping the US Constitution again.

buckeroo  posted on  2018-06-23   9:45:04 ET  Reply   Untrace   Trace   Private Reply  


#2. To: buckeroo, Deckard, Gorsuch wrong again (#1)

Ruthless thugs usurping the US Constitution again.

Gorsuch is on the wrong side, again. First he's for internet taxes, and now the big brother police state surveillance, in spite of his 4th amendment based dissent.

He's right in his reasoning about cell phone data being yours and being covered by the 4th, but he nonetheless voted wrong.

hondo68  posted on  2018-06-23   10:23:12 ET  Reply   Untrace   Trace   Private Reply  


#3. To: hondo68 (#2)

First he's [Gorsuch] for internet taxes

You and many of us have known for about 30 years that eventually taxes will be collected and paid for commerce based on Internet transactions.

Its official now.

buckeroo  posted on  2018-06-23   10:47:03 ET  Reply   Untrace   Trace   Private Reply  


#5. To: buckeroo (#3)

You and many of us have known for about 30 years that eventually taxes will be collected and paid for commerce based on Internet transactions.

Its official now.

And Amazon is the chief beneficiary. On top of their special shipping deals with the USPS (unless Trump has killed that), they have a serious advantage over smaller competition.

Pinguinite  posted on  2018-06-23   11:28:11 ET  Reply   Untrace   Trace   Private Reply  


#6. To: Pinguinite (#5)

And Amazon is the chief beneficiary.

You gotta be kidding yourself. If taxes are levied, Amazon must comply as any worthy commerce effort. There is no benefit for any Internet company. Taxes are mere added costs to the balance sheet that drives the price UP!

buckeroo  posted on  2018-06-23   12:06:24 ET  Reply   Untrace   Trace   Private Reply  


#7. To: buckeroo (#6)

You gotta be kidding yourself. If taxes are levied, Amazon must comply as any worthy commerce effort.

State sales taxes are already collected by Amazon for most every state, as they already have a physical presence in most states, being the big corporation they are, so this ruling doesn't affect them much. Who's affected are the smaller shippers that only have a presence in a single state. Their customer costs will go up as they'll need to pay their state taxes where they did not before.

At least that's my understanding.

Pinguinite  posted on  2018-06-23   12:12:07 ET  Reply   Untrace   Trace   Private Reply  


#8. To: Pinguinite (#7)

All you suggested is that Amazon has been in compliance before the recent US Supreme Court ruling.

To me, they make no more money as you suggested earlier.

buckeroo  posted on  2018-06-23   12:16:57 ET  Reply   Untrace   Trace   Private Reply  


#9. To: buckeroo (#8)

To me, they make no more money as you suggested earlier.

But their competition now loses their advantage, which helps Amazon. And if they do have a unfair favorable shipping deal with USPS, then....

Pinguinite  posted on  2018-06-23   12:21:24 ET  Reply   Untrace   Trace   Private Reply  


Replies to Comment # 9.

#10. To: Pinguinite (#9)

I doubt that many business(es) take into account compliance considerations into and about their business plans.

The eventual FACTOID: PAY!

buckeroo  posted on  2018-06-23 12:32:27 ET  Reply   Untrace   Trace   Private Reply  


End Trace Mode for Comment # 9.

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