Supreme Court Says Warrants Are Needed For Cell Site Location Info

from the 4th-Amendment-Bonus-Content! dept

Fri, Jun 22nd 2018 2:17pm — Tim Cushing

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.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 3rd party doctrine, 4th amendment, carpenter, csli, location info, privacy, scotus, supreme court

21 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Pixelation, 22 Jun 2018 @ 3:35pm

Small miracles
Nice to see something with a more positive outcome from the Supreme court.
[ link to this | view in thread ]
Anonymous Coward, 22 Jun 2018 @ 3:40pm

They are only ruling this way because they have too
We are on the cusp of using the cell tracking to verify that police have been in the places they claimed they were to collect overtime or when they suffered a job-related injury. Being able to prove that they have been falsifying their records for years is inducing fear in the hearts of those who should be protecting us.
[ link to this | view in thread ]
madasahatter (profile), 22 Jun 2018 @ 4:04pm

Gorsuch
He has the correct interpretation. Records created by the action of the individual should be treated as if they are owned by the individual regardless of the actual possessor of the record. Yes this slows down a case as warrant is needed to get the records but it stops fishing expeditions. In reality, I doubt there would be any real difficulty in getting a warrant for the records of legitimate suspect.
[ link to this | view in thread ]
That One Guy (profile), 22 Jun 2018 @ 4:28pm

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.
[ link to this | view in thread ]
Anonymous Coward, 22 Jun 2018 @ 4:33pm

Re: They are only ruling this way because they have too
That's quite the conspiracy theory. In reality, it's well established that the Fourth Amendment doesn't apply to government agents in the course of their work, and private people do not have a general power to subpoena police records. They have to use FOIA and its state equivalents, which have exceptions for things that would compromise police investigations. Expect the police to use these liberally when asked for the records you're talking about.
[ link to this | view in thread ]
Anonymous Coward, 22 Jun 2018 @ 4:48pm

Re: Gorsuch

He has the correct interpretation. Records created by the action of the individual should be treated as if they are owned by the individual regardless of the actual possessor of the record.

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.
[ link to this | view in thread ]
Thad, 22 Jun 2018 @ 4:59pm

Re: tl;dr
Well, not that much harder.
[ link to this | view in thread ]
Anonymous Coward, 22 Jun 2018 @ 5:06pm

Re: Gorsuch
It is surprising to see his take given how Alito, Thomas and Kennedy all basically go the diametrically opposite way as the "true conservatives" of law and order.

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?
[ link to this | view in thread ]
JoeCool (profile), 22 Jun 2018 @ 5:29pm

Re: Re: Gorsuch

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.

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.
[ link to this | view in thread ]
Anonymous Coward, 22 Jun 2018 @ 8:02pm

Re: Re: Re: Gorsuch

The computer didn't create the record, the person who caused the computer to create it did.

So... the programmer, or the user? (We could decide either way, but it's a question of policy rather than facts.)
[ link to this | view in thread ]
Toom1275 (profile), 23 Jun 2018 @ 6:32am

Re: Gorsuch
Gonna paste an insigntful-looking comment on that subject I found on another article about this:

shelbystripes wrote:

Gorsuch scares the crap out of me, and I say that as someone who has been condemning the third party doctrine in Ars' comments sections for years. You'd think I'd be rejoicing at this kind of "dissent", right? But no. No I'm not.

I'm not because Gorsuch is insane when it comes to property rights.

Earlier this year, in an 8-1 decision, the Supreme Court upheld a Minnesota life insurance regulation. The regulation was simple and common among US states; if you have a life insurance policy, and you get divorced, your ex-spouse is automatically removed as beneficiary. The law doesn't say you can't name an ex-spouse as beneficiary, you can, it just assumes by default that a divorce means you don't. If you do, you just have to go back and re-add them after the date of the divorce.

As I said, this was an 8-1 decision. Even Thomas joined the majority. Gorsuch, though, went off the rails in a lonely dissent. He argued that the life insurance policy was a contract, and because the Minnesota law applied to existing life insurance policies (policies underwritten before the law was enacted), it was unconstitutional.

The text of Gorsuch's dissent itself is painful to read, as he mixes up core concepts of constitutional law. At one point he analogizes to criminal law, asking if "a legislature could hold you retroactively liable for violating a new law against jaywalking that didn’t exist when you crossed the street", then saying "[n]o one would take that idea seriously when it comes to crime". Well, yes, but only because that "idea" would constitute an ex post facto law that violated the constitution's Ex Post Facto Clause, and it has been clear since 1798 that the Ex Post Facto clause doesn't apply to civil laws. Directly contradicting 200-year-old SCOTUS precedent without even acknowledging it is a horrifying breach of judicial process. Instead he slyly re-imagines the Contracts Clause into the Ex Post Facto Clause's civil equivalent.

(Oh, and by the way, he also seems to completely ignore basic concepts of trusts and estates law in the process. He writes that the beneficiary designation is the "whole point" of a life insurance contract, and thus Minnesota law was depriving an ex-wife of insurance policy proceeds. But the primary purpose of a life insurance policy is to provide financial compensation to one's intended heirs upon death, not to provide that compensation to a particular person. An "heir" has literally no rights in the policy before the policyholder's death, which is why in many cases, the policyholder can change the beneficiary at will.)

Gorsuch's extreme reading of the Contracts Clause would, apparently deliberately, eviscerate the government's regulatory power. After all, his reading is that no federal or state law can enact ever regulation that would impact existing contracts. Want to protect the environment? Sorry, we have a 99-year lease with CoalCo to provide coal power to us! Expand anti-discrimination laws? Sorry, we have binding contracts with all of our employees!

Rooting privacy laws in Gorsuch's re-imagining of contract rights will protect people's privacy from the government but destroy any chance of having privacy from large businesses or your landlord or employer. All they really need to do is put their right to invade your privacy into a contract. Gorsuch would probably void all net neutrality laws as intruding on the "rights" of individuals to individually accept contracts with ISPs containing data caps, fast lanes, etc.

In other words, Gorsuch wants to revive the corpse of the Lochner era, which resulted in the Crash of 1929 and the Great Depression.

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
[ link to this | view in thread ]
Anonymous Coward, 23 Jun 2018 @ 8:50am

out_of_the_blue is not going to like this much, is he? Due process and all...
[ link to this | view in thread ]
Anonymous Coward, 23 Jun 2018 @ 2:06pm

Re: Surprising ??
[ link to this | view in thread ]
Anonymous Coward, 23 Jun 2018 @ 2:22pm

Re: Small miracles
...yes this should eventually kill the outrageous '3rd Party Doctrine, but SCOTUS has long proven a very unreliable defender of the Bill of Rights.

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.
[ link to this | view in thread ]
That One Guy (profile), 23 Jun 2018 @ 5:40pm

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.
[ link to this | view in thread ]
David, 24 Jun 2018 @ 1:56am

Do those justices have a clue about court law and precedence?
So now they say that the third party doctrine for telephone records does not extend to location data because location data is an unforeseen extension of the original kind of telephone record.

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.
[ link to this | view in thread ]
Mr Metaphor, 25 Jun 2018 @ 5:29am

Re: Do those justices have a clue about court law and precedence?
"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."

I think you're mixing your sports here ;)
[ link to this | view in thread ]
John Cressman, 25 Jun 2018 @ 6:32am

Captain OBVIOUS!
This SHOULD have been a "Thank you Captain Obvious" but unfortunately, it took going all the way to the Supreme Court to finally get this ruled as private information.
[ link to this | view in thread ]
The Wanderer (profile), 25 Jun 2018 @ 9:06am

3rd, or third?
The article's "Third Party Doctrine" links to the Techdirt tag "third party doctrine" - but the article itself was filed under the tag "3rd party doctrine", so it won't show up in the list you get from that link.

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.
[ link to this | view in thread ]
Thad, 25 Jun 2018 @ 10:21am

Re: tl;dr

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.

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.
[ link to this | view in thread ]
Thad, 25 Jun 2018 @ 12:32pm

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.
[ link to this | view in thread ]