The Supreme Court Just Put a Ding in the Surveillance State

By Cristian Farias, New York Magazine

24 June 18

 

n 2014, Chief Justice John Roberts drew praise from every corner when he led a near-unanimous Supreme Court to rule that it’s unconstitutional for the government to rummage through a smartphone without first obtaining judicial authorization. “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant,” he wrote. We swooned.

Echoing some of that same language, Roberts again took the lead in Carpenter v. United States, the biggest digital-privacy case the high court has decided in recent years. By all measures, the ruling is a win for civil liberties and takes the otherwise slow-to-adapt justices further into the 21st century. But something about the issue in the case — what limits the Constitution places on the government seeking access to what is known as cell-site location information, or CSLI — split the justices in a number of directions. And it drove the chief to keep the ruling as cabined as possible. “Our decision today is a narrow one,” Roberts writes, repeating a theme that we’ve been seeing a lot this contentious term.

For one, not a single conservative justice endorsed Roberts’s majority, which was joined only by the Supreme Court’s more liberal members — Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Relying on his own views in the 2014 case, Roberts again held that authorities need a warrant before accessing cell-phone location data, which in the aggregate can be so accurate and complete its collection can paint a picture for the cops of everywhere you go — your coffee run, your gym visits, your bar crawl in Brooklyn, and that last sit-down with your urologist.

None of those things are even remotely related to solving crime, let alone are any of the government’s business. And yet that’s exactly what investigators, in the pre-Carpenter era, could take a look at by sheer force of will. All they had to do was ask nicely by procuring a subpoena and serving it on your cell-phone carrier, which would then comply and hand over all your location data. This “new phenomenon,” as Roberts calls it, which can result in a trove of information that is “detailed, encyclopedic, and effortlessly compiled,” calls for a heightened standard of protection under the Fourth Amendment. Because “an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI,” cops generally need a warrant to access it.

Consider Timothy Carpenter, the titular petitioner in the case. He was sentenced to more than 100 years in federal prison following his convictions for nearly a dozen crimes — mostly robberies and firearm offenses occurring during a four-month period. Prosecutors obtained a pair of court orders under a lesser legal standard to then compel MetroPCS and Sprint to hand over Carpenter’s cell-phone location data — 127 days’ worth of information comprising 12,898 location points. Enough to draw a map of his every move and to peg him to the multiple crime scenes.

This wealth of data, Roberts acknowledged, “does not fit neatly within existing precedents.” And so he proceeds to look at the few times the Supreme Court has had to grapple with forms of technology that help track a person’s public movements, such as beepers and GPS monitoring, and a pair of decisions where the Supreme Court more or less said that stuff we hand over to third parties — such as checks deposited in a bank and the telephone numbers we dial — are fair game for prosecutors. As in, we have no expectation of privacy in that information and the Constitution won’t save us if the government wants it.

Out with the old. None of those precedents apply to CSLI, which the justices now find to be “qualitatively different category” of records. Back in the day, Roberts said, “few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements.” It’s a new dawn, and the Supreme Court has woken up to it. More important still, the court acknowledged that, as technology progresses, so should our understanding of Fourth Amendment protections:

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.

None of this impressed any of Roberts’s four conservative comrades, each of whom felt the need to write a separate opinion to register his displeasure. Collectively, they wrote 96 pages to the chief’s 23 — a sign that tempers may have flared behind the scenes, if not on the pages of early drafts circulated prior to today’s decision. Chief among the dissenters was Justice Anthony Kennedy, who just a day earlier had squared off with Roberts on the other controversy of the digital age, the taxation of out-of-state online sales. Here, Kennedy seems particularly worried of the real-world ramifications of the majority’s conclusions, which he says aren’t clear enough and leave lower courts and law enforcement with fewer tools and on shakier ground.

In true form, Justice Clarence Thomas wants to go back to 1791, the year the Fourth Amendment was ratified, and premise the entirety of the Carpenter ruling on the original meaning of “searches” found in the constitutional text. As usual, no other justice joined this view, which would overrule a key precedent and hold that only property belonging to a person is protected. Carpenter, he wrote, “did not create the records, he does not maintain them, he cannot control them, and he cannot destroy them. Neither the terms of his contracts nor any provision of law makes the record his. The records belong to MetroPCS and Sprint.” (Justice Neil Gorsuch, also writing for himself, would rely on property law and “a more traditional Fourth Amendment approach” to resolve Carpenter’s troubles.)

Of all the conservatives, the true surprise was Justice Samuel Alito, a former prosecutor and generally pro-law-enforcement voice who in 2012 authored an influential opinion — which Roberts credits — that acknowledged the realities of the digital age. He still shares those concerns, but to him, what the Supreme Court just did to claw back prosecutors’ subpoena power to third parties is truly groundbreaking. “Treating an order to produce like an actual search, as today’s decision does, is revolutionary,” Alito writes. “It violates both the original understanding of the Fourth Amendment and more than a century of Supreme Court precedent.”

In his view, and that of legal scholars parsing the ruling, Carpenter is truly a new beginning, one that may upend how the government relies on new technologies to investigate crime and go after the bad guys. For Alito’s money, the ruling leaves law enforcement worse off, and the law unclear enough, to lead to “a blizzard of litigation” to figure out what it all means. “The desire to make a statement about privacy in the digital age does not justify the consequences that today’s decision is likely to produce,” Alito warns.

As with many Supreme Court decisions considered game-changers, it may be too early to tell Carpenter’s true extent in real life and the courtroom. As those debates rage on and the consequences play out, the person who should be the happiest about today, Carpenter, won’t have much to celebrate: Turns out that the Fourth Amendment gives a pass to law enforcement if they violate rights that didn’t officially exist when all your stuff was unlawfully seized.