Supreme Court Says Warrants Are Needed For Cell Site Location Info
from the 4th-Amendment-Bonus-Content! dept
The Supreme Court -- in a narrow decision (both in scope and votes) -- has restored a little more of the Fourth Amendment. The long-awaited decision [PDF] in the Carpenter case has been released and the Supreme Court finds, in a 5-4 decision, that cell site location info (CSLI) is technically a third-party record but worthy of the Fourth Amendment's protection.
The defendant challenged the government's warrantless acquisition of 127 days of CSLI, arguing that the constant location records generated (without proactive assistance from phone users) by cell providers raised enough of a privacy issue the Fourth Amendment was implicated. Somewhat surprisingly -- given the long history of expansive readings of the Third Party Doctrine -- the Supreme Court agrees.
[W]hile the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records. After all, when Smith was decided in 1979, 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.
We decline 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. Whether the Government employs its own surveillance technology as in Jones 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 CSLI. The location information obtained from Carpenter’s wireless carriers was the product of a search.
The court notes simply venturing out into the public does not erase all privacy expectations. The pervasive tracking engaged in by phone companies for business reasons should not undo a person's reasonable expectation of privacy. While the government tried to compare it to tracking vehicles with GPS devices, the court notes that cars cannot go everywhere people go. Long-term tracking -- made possible by provider recordkeeping -- provides the government with detailed depictions of cellphone users' lives. And all of this was -- up until this decision -- only a subpoena away.
[H]istorical cell-site records present even greater privacy concerns than the GPS monitoring of a vehicle we considered in Jones. Unlike the bugged container in Knotts or the car in Jones, a cell phone—almost a “feature of human anatomy,” Riley, 573 U. S., at ___ (slip op., at 9)—tracks nearly exactly the movements of its owner. While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time. A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.
[...]
Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.
The ubiquity of cellphones has changed the Third Party Doctrine dynamic. The court isn't willing to give the government warrant-free access to the personal lives of millions of Americans.
Critically, because location information is continually logged for all of the 400 million devices in the United States—not just those belonging to persons who might happen to come under investigation— this newfound tracking capacity runs against everyone. Unlike with the GPS device in Jones, police need not even know in advance whether they want to follow a particular individual, or when.
That's the substance of the decision, but the whole thing is worth reading in full. Even the dissents are worth a read, if only to see how many justices would prefer the government treat long-term tracking as no different than bank records people voluntarily create with every transaction. The court will extend the Third Party Doctrine to cover historical CSLI. However, it does not extend that coverage to cover tower dumps, real-time CSLI (ping orders/Stingray use) or any other records otherwise covered by the Third Party doctrine. But this is still a significant Fourth Amendment win -- and law enforcement agencies using CSLI subpoenas to cover Stingray use will now need to craft warrant requests specifying what they're doing, which will make just a little bit tougher to engage in parallel construction.
More than half the page total is given over to the dissent. Justices Kennedy and Alito have written separate dissents that say pretty much the same thing:
1. The records were obtained from a third party so no warrant should ever be needed.
2. This will law enforcement's work more difficult.
Even if the latter is true, Constitutional protections protect the citizens from their government. If they're an obstacle, they're meant to be. The court isn't there to ensure easy government access. It's there to act as a check against any government overreach it observes.
Justice Thomas' dissent is perhaps the most infuriating read. Much like his dissent in other law enforcement-related cases, Thomas sides with the government while claiming he's siding with the Constitution. His main argument here is that the Fourth Amendment says nothing about privacy or reasonable expectations, therefore the court's decision is wrong. It guards people and papers, not stuff obtained from third parties, no matter how invasive these records can potentially be.
Justice Gorsuch's dissent, however, is an entertaining read. It's really not even a dissent. He agrees with the majority's decision but doesn't think it goes far enough. If Gorsuch had his way, he would also return to a more originalist view of the Fourth Amendment -- the property rights theory he pitched during oral arguments. But unlike Thomas, his would eliminate the court-erected Third Party Doctrine and grant privacy to records created by customers/users and held by third parties. These decisions (Smith, Miller, Katz) would instead be replaced with a property-based treatment of records, giving customers/users more ownership rights to third-party records they create, making them part of the "houses and papers" Fourth Amendment interpretation even if the the "papers" are held by others.
I cannot fault the Sixth Circuit for holding that Smith and Miller extinguish any Katz-based Fourth Amendment interest in third party cell-site data. That is the plain effect of their categorical holdings. Nor can I fault the Court today for its implicit but unmistakable conclusion that the rationale of Smith and Miller is wrong; indeed, I agree with that. The Sixth Circuit was powerless to say so, but this Court can and should. At the same time, I do not agree with the Court’s decision today to keep Smith and Miller on life support and supplement them with a new and multilayered inquiry that seems to be only Katz-squared. Returning there, I worry, promises more trouble than help. Instead, I would look to a more traditional Fourth Amendment approach. Even if Katz may still supply one way to prove a Fourth Amendment interest, it has never been the only way. Neglecting more traditional approaches may mean failing to vindicate the full protections of the Fourth Amendment.
This is a big ruling and it will definitely affect how law enforcement approaches investigations. It will not be well-received by those used to tracking people via subpoena (rather than tail cars and surveillance teams). But it likely won't do much for Carpenter, who will almost certainly find good faith awarded to law enforcement's acquisition of his CSLI records. It will help going forward, but Carpenter will not be a beneficiary.
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Filed Under: 3rd party doctrine, 4th amendment, carpenter, csli, location info, privacy, scotus, supreme court
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Small miracles
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Re: Small miracles
Stupid SCOTUS decision on 'Internet Sales Tax' shows they are unbound from to the Constitution and Common Law. They are basically still unaccountable lawmakers and do as they please.
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They are only ruling this way because they have too
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Re: They are only ruling this way because they have too
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Gorsuch
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Re: Gorsuch
There's a difference between "how things should be" and "the correct interpretation". If we want to apply property rights to data, the obvious interpretation is for data to belong to whoever created it, not whoever caused it to be created. (A computer created it. For a corporation, which is itself a fictional entity created by law and not contemplated by the constitution. These facts may or may not be relevant.)
I agree with your policy proposal, just not with the idea it's an interpretation of the law.
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Re: Re: Gorsuch
The last sentence shows the fallacy of your idea. The cause of the cause is the cause of the effect. The computer didn't create the record, the person who caused the computer to create it did.
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Re: Re: Re: Gorsuch
So... the programmer, or the user? (We could decide either way, but it's a question of policy rather than facts.)
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Re: Gorsuch
Gorsuch is probably interested in marking his territory a bit here as a "disruptor" and making it clear that he intends to "retire" some of the older precedences. Make SCOTUS greatly controversial again?
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Re: Surprising ??
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Re: Gorsuch
Gonna paste an insigntful-looking comment on that subject I found on another article about this:
link to original comment, which has linls not preserved by copy-paste:
https://arstechnica.com/tech-policy/2018/06/supreme-court-rules-yes-govt-needs-warrant-t o-get-cellphone-location-data/?comments=1&post=35554207#comment-35554207
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If 'following the law' is too difficult, get another job
And all of this because police are too lazy, incompetent, and/or corrupt to get a freakin warrant. All they have to do is present sufficient evidence to support tracking someone, or acquiring other data like that, have a judge sign off on it, and presto, no need for cases like this.
However, given that would create a paper trail, provide limits as to what they can and cannot do, and make it much harder to engage in baseless fishing expeditions I guess that's just too difficult for many of them.
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Re: tl;dr
Well, not that much harder.
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Re: Re: tl;dr
'Ever so slightly harder' shall we say, which just further highlights how lazy/incompetent/corrupt they've become if a bar set that low is considered a serious problem.
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Do those justices have a clue about court law and precedence?
What the effing eff? Why do they think this kind of stuff got called a generic name like "third party doctrine" in the first place when it is supposedly just about some kind of telephone company records?
It's because a governing principle has been abstracted from the verdict this doctrine is based on, namely that of records held and produced by a third party in the context of doing business with you.
This ruling amounts to "the third party doctrine still holds except when we feel it doesn't". I mean, the third party doctrine was shit to start with, but this is a mockery.
They are the Supreme Court. They cannot just punt and wait for someone else to catch the ball. Either that ball belongs in the court or not.
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Re: Do those justices have a clue about court law and precedence?
I think you're mixing your sports here ;)
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Re: tl;dr
Just because an issue belongs in the Supreme Court doesn't mean that this case, at this moment, is procedurally the correct one to argue that issue.
We also saw the court recently punt on gerrymandering. They punted the Wisconsin case because the plaintiffs had not shown standing, and they punted on the Maryland case because the lower court had not behaved improperly when it chose not to decide the issue before the 2018 election.
This was not a close call; it was unanimous.
Part of due process is process. I would dearly like to see a decision on gerrymandering, but the court was right not to reach a decision based on the two cases before it.
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Re: Re: tl;dr
Adding: two more gerrymandering rulings from the Court today, still largely narrow and procedural.
The NC ruling was another punt: the case was sent back to the lower court to reconsider in light of last week's Wisconsin ruling.
The Texas ruling came on partisan lines and determined that Texas could keep its existing district maps, but that was on the grounds that those maps had been specifically ordered by the lower court; the conservative majority ruled that the court was wrong to order the state to use those maps and then later rule that it couldn't.
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Captain OBVIOUS!
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3rd, or third?
It looks like both variants of the tag have been used multiple times in the past. It would probably be worth standardizing on one variant for the future; it may also be worthwhile to go back to past articles with the other tag and update them to use the standardized form.
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