To make it to oral arguments at the Supreme Court on Wednesday morning, I left Brooklyn, New York, at 5 a.m., briefly got lost at the Fulton Station, boarded a 7 a.m. train at Penn Station, and finally hoofed it to 1 First St. NE in Washington, where for a blessed hour I surrendered my cellphone as is required at argument sessions. I tell you all this because it is information about my location that I very much wish to share with you and I am now so doing.
By way of contrast, Timothy Carpenter was not as happy to have his whereabouts exposed. In 2011, the FBI was investigating a bunch of Radio Shack robberies around Detroit. Because agents suspected Carpenter of being a driver for this enterprise, they sought and obtained—without a warrant—what’s known as cell site location information to determine where he had been for a period of 127 days, placing his phone at 12,898 locations. Thanks to this information, he was sentenced to 116 years in prison.
In response to Carpenter’s claim that tracking his movements using cellphone records violated his Fourth Amendment right to be free of warrantless government searches, the federal government argued that cellphone location data that was voluntarily turned over to third-party phone companies is not private. Indeed, a federal statute, the Stored Communications Act, allows the government to seek telecom information so long as it’s “relevant and material to an ongoing criminal investigation.” That’s a standard far lower than the probable cause showing needed to get a warrant. Longstanding constitutional doctrine holds that once you turn over your personal papers and data to a third party, the government isn’t violating your privacy rights. The 6th U.S. Circuit Court of Appeals agreed with the government that this was not an unconstitutional search.
Arguing on behalf of Carpenter, the American Civil Liberties Union’s Nathan Wessler has to contend with the insistence of Justices Samuel Alito and Anthony Kennedy that cellphone records are no more intrusive than bank records, which can be obtained without a warrant. Then Justices Sonia Sotomayor, Ruth Bader Ginsburg, and John Roberts all raise doubts about the ACLU’s contention that prosecutors should have to get a warrant once they are seeking more than 24 hours’ worth of location data.
Sotomayor highlights her concern about the intrusive nature of such searches, even if they last less than 24 hours: “Right now we’re only talking about the cell sites records, but as I understand it, a cellphone can be pinged in your bedroom. It can be pinged at your doctor’s office. It can ping you in the most intimate details of your life. Presumably at some point even in a dressing room as you’re undressing.” Wessler calls these records a “time machine” that can be used to trace your every move.
Alito asks Wessler to distinguish the two key cases, Smith v. Maryland (about the government scooping up phone numbers dialed from a home phone) and U.S. v. Miller (about the government scooping up banking records). Wessler replies that people aren’t voluntarily handing over their location information when they use their cellphones. Alito begs to differ: “Well, I mean, that’s a debatable empirical point whether people realize what’s going on. There’s reason to think maybe they do. I mean, people know, there were all these commercials, ‘Can you hear me now?,’ our company has lots of towers everywhere. What do they think that’s about?” He adds that the standard cellphone contract warns users that they can “disclose this information to the government if we get a court order.”
Wessler replies that most Americans actually don’t know that this is what their service contract says. Kennedy asks why it isn’t best left to Congress to address the balance of interests, as legislators did with the Stored Communications Act. Kennedy and Wessler spar over whether reasonable people have an expectation of privacy in their cellphone data. Kennedy admits that he may not be the cellphone wizard here, but “if 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.” Laughter in the gallery.
Michael Dreeben argues on behalf of the Trump solicitor general’s office, and he opens by claiming that the cell companies “function essentially as witnesses being asked to produce business records of their own transactions with customers.” He adds that the government is doing nothing more than “asking a business to provide information about the business’s own transactions with a customer. And under the third-party doctrine, that does not implicate the Fourth Amendment rights of the customer.”
The chief justice stops him: “This is not simply created by the company, though. It’s a joint venture with the individual carrying the phone.”
Sotomayor tries to distinguish levels of intrusion: “Mr. Dreeben, why is it not OK, in the way we said about beepers, to plant a beeper in somebody’s bedroom, but it’s OK to get the cellphone records of someone who—I don’t, but I know that most young people have the phones in the bed with them.” Young people look uncomfortable.
Dreeben tells Sotomayor that the information sought here is not the contents of conversations but mere routing information. Justice Elena Kagan asks Dreeben to distinguish these facts from those in U.S. v. Jones, the 2012 GPS case in which Alito wrote on behalf of the majority that “society’s expectation has been that law enforcement 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.”
Dreeben replies that Jones “involved government surveillance. It involved attaching a GPS device to the car.” This case, by contrast, is about acquiring a provider’s business records. It is at this point that Justice Neil Gorsuch steps in on the side of the ACLU. He suggests that there is also a “property-based approach to privacy that has to be considered.” Then he and Dreeben interrupt one another for a lengthy period of time as Gorsuch demands that Dreeben stop fighting his hypothetical. Gorsuch demands that he concede that there is a property right here, and Dreeben says he refuses to concede to the “existence of a property right that resembles no property right that’s existed.” Now it’s the old people’s turn to look uncomfortable.
Dreeben insists again that there is an “element of voluntariness in signing up for a bank account and using a debit card to purchase everything in your life.” But the chief justice pushes back, citing Riley v. California, the cellphone privacy case in which the court found, as Roberts puts it, “that you really don’t have a choice these days if you want to have a cellphone.”
Gorsuch will go on to thump away on his property rights argument, demanding of Dreeben whether the government can “generally acknowledge a property right but then strip it of any Fourth Amendment protection.” And Kagan will contend that writing off all intimate information as “third-party data” is basically just saying that all of “the other factors that you might think in a sensible world would matter to this question is trumped by the fact that the government is doing this by subpoena, rather than by setting up its own cell towers.”
Other than Alito and Kennedy, it’s hard to find much sympathy for the government’s contention that all your location information is voluntarily surrendered to your carrier and contains nothing intimate about your life. In an intriguing way, the dividing line at the court on cellphone privacy has less to do with ideology than with age. Sotomayor may not take her iPhone to bed with her, but both Gorsuch and Kagan clearly know people who do. Ginsburg is basically 32 at heart, and Justice Stephen Breyer—waxing metaphysical on Wednesday about the geographic location of one’s physical body—proves that privacy is sufficiently meta to be everywhere and nowhere. The government seems content to let Congress figure this out or wait and see whether more cellphone towers might make us more free in the future. Happily, the majority of the court seems to recognize that the Framers would no more want AT&T to root through your papers and hand them to the government than they would want the government to do such a thing itself.
By the way, my train is in Wilmington, Delaware, right now. But I wanted you to know that.