SCOTUS: Warrant Needed for Cell-site Records

SCOTUS: Warrant Needed for Cell-site Records

The Supreme Court of the United States this week ruled in favor of privacy in Carpenter v. United States, a case out of the sixth circuit involving the warrantless search of a defendant’s cell phone records. Specifically, the records obtained were that of “cell-site” information (what many still call “cell phone towers”), which reveal what particular antennas the defendant’s cell phone “hit” at a particular time. These records were used by the prosecution to prove the defendant’s location and thus proximity to the scene of the crimes for which he was charged. The defendant challenged the admissibility of the evidence.

The majority opinion, written by Chief Justice Roberts and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, agreed with the defendant and reversed the ruling of the Sixth Circuit, which had determined the records admissible.

In grappling with the issue, the Court discussed its role in interpreting Fourth Amendment protections alongside evolving technology, from “pen registers” keeping record of land-line calls, to infrared censors, to GPS trackers surreptitiously placed on vehicles. Entire law school textbooks have been written to explain the various and nuanced rulings on these cases and why, for example, a radio transmitter hidden in a canister of chloroform purchased by a suspect and then used by police to follow the automobile in which he traveled was not ruled a warrantless search, but a GPS tracker hidden on a suspect’s vehicle for the same purpose was. The Court here, in Carpenter, does a good job of running through a history of their precedents before getting to the analysis of the cell-site records.

The Court in 1983 held that “pen registers”, the records of numbers dialed from a particular land line, are not subject to a warrant because the user knows that the phone company will have the information, applying what is known as “the third-party doctrine.” The third-party doctrine basically says that a person has no privacy interest in that which belongs to a third party. The majority here declines to extend the third-party doctrine to cell-site records.

While cell phone users know this information is kept by carriers, the Court points out that the ubiquitous use of cell phones today means that cell-site info is “a detailed and comprehensive record of a person’s movements”, rather than a list of numbers dialed. The Court holds that one’s physical location and movements are subject to a legitimate expectation of privacy.  The Court quoted US v. Jones, its 2012 case involving the hidden GPS vehicle tracker:

Society’s expectation has been that law enforcement agents 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.”

In comparing GPS data with cell phone location data, the Court further quotes Jones, reasoning that “the time-stamped data provides an intimate window into a person’s life, revealing not only his particular movements but through them his ‘familial, political, professional, religious, and sexual associations.'”

The Court opined that cell phone location data goes even further, because while people do leave their cars, they are almost always within an arm’s reach of their cell phones, affording the government “near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.” Noted the majority:

Whoever the suspect turns out to be, he has effectively been tailed every moment of every day for five years, and the police may—in the Government’s view—call upon the results of that surveillance without regard to the constraints of the Fourth Amendment. Only the few without cell phones could escape this tireless and absolute surveillance.

The Court calls its decision narrow, clarifying its intent to limit its holding to historical data; the Majority opinion states that they express no opinion on the retrieval of real time data, nor does the Court explicitly overturn any of its prior rulings.

Complicating matters in this case was that authorities did not simply call T-mobile and request the records. Rather, they sought an order from a court, tantamount to a subpoena, under the rubric of the “Stored Communications Act”, a federal law which requires the government to show “‘reasonable grounds’ for believing that the records were ‘relevant and material to an ongoing investigation’.” The Court points out that this is well-short of the probable cause standard required for a warrant in order to satisfy the Fourth Amendment, and holds that this provision of the SCA may not be used to obtain historical cell-site records: “the Government’s obligation is a familiar one-get a warrant.”

The Court sums up its holding thusly:

In light of the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the
inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection. The Government’s acquisition of the cell-site records here was a search under that Amendment.

There were four separately written dissents from the majority. In the first, authored by Kennedy and joined by Thomas and Alito, Kennedy takes issue with the marjority’s view that business records held by a third party are covered by the Fourth Amendment. In Kennedy’s view, the “compulsory process” provided by the SCA is sufficient. He advocates application of a property interest analysis and the third-party doctrine, recognizing no difference in cell-site records and “other kinds of business records the Government has a lawful right to obtain by compulsory process.” He opines that, because the customers do not own, control, or have possession of these records, they have no reasonable expectation that they will not be disclosed. He further calls the distinction between cell-site records and phone call records or credit card records “illogical”, noting that the latter two kinds of records are still subject to subpoena.

In an apparent rebuttal to the majority’s concern that these records provide a detailed map and timeline of an individual’s whereabouts, Kennedy notes the data is imprecise and points to “a large geographical area” of up to two square miles, unlike the 15-foot accuracy of a GPS. As to the privacy expectations of the consumer, Kennedy notes that providers often sell this information to third parties and therefore cell phone users can have no expectation of privacy (though he concedes the information is sold “in the aggregate”, and not with individually identifiable information).

Justice Thomas wrote separately, his dissent based on his agreement with Justice Kennedy that the defendant had no property interest in the records. But Thomas goes further, rejecting the Court’s longstanding definition of “search” as “any violation of a reasonable expectation of privacy”. Thomas, in a word-by-word analysis of the Fourth Amendment, states his preference for the ordinary meaning of “look over or through for the purpose of finding something”, and advocates applying it specifically to “persons, houses, papers and effects” in a very literal reading of the text.

Thomas also joined with Justice Alito in his separate dissent, for many of the same reasons as the other dissenters. Before he launches into a five-and-a-half page history lesson, Alito calls the majority opinion “revolutionary”, both for granting the defendant an interest in records belonging to a third party and also for treating the court order to produce records as “a search”. Alito’s view is that the Fourth Amendment was not intended to apply to obtaining documents held by third parties, and that the Secured Communications Act was the proper method.

Finally, Justice Gorsuch wrote separately in a dissent in which he agreed with the majority in their disregard for the third party doctrine, but also adopted Justice Thomas’ rejection of the “expectation of privacy” test as well. Gorsuch believes a property interest analysis is the best approach to these records.

Search and seizure jurisprudence continues to evolve and defy bright line rules, and the five separate opinions here leave lots of room for interpretation on similar issues. The majority specified it’s holding was narrow, so one can expect more rulings in the future to further supplement and alter this particular body of law.


Senior Editor
Twitter  

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

Please do be so kind as to share this post.
Share

11 thoughts on “SCOTUS: Warrant Needed for Cell-site Records

  1. Thomas, in a word-by-word analysis of the Fourth Amendment, states his preference for the ordinary meaning of “look over or through for the purpose of finding something”, and advocates applying it specifically to “persons, houses, papers and effects” in a very literal reading of the text.

    For Christ’s sake, we are rapidly moving to a paperless society in this 21st century A.D. Does that mean the 4th Amendment can only apply to tangible things going forward? It seems reasonable that people appearing before the court ought to be able to have judges with the ability to make rulings in keeping with the times.

    Thomas even goes so far as to repudiate the Katz decision, relying instead on Scalia’s denunciation of the same. It seems that our Justice Thomas wants to rely on stare decisis when it suits his needs, which it most certainly does not in this case.

    Odd bedfellows in this majority, to be sure, but it’s nice to get a decision that attempts to keep pace with the rapid changes technology is making in our personal lives.

      Quote  Link

    Report

    • I try to keep my opinion out of these pieces, but I found the parts of the dissents you refer to laughably, stubbornly, puzzlingly obtuse. Almost arguing just for the sake of it- I mean, they cannot really think that, you know? I bet if I went back and read prior 4A cases I would find a lot of contradiction.

        Quote  Link

      Report

    • The textualism of Thomas and the extreme originality of others threatens the Constitution they claim they want to protect.

      If the only correct way to understand the Constitution is through the world and concepts of the late XVIII century, sooner rather than later the Constitution will become obsolete. Judges cannot say “I can’t find cell phones, internet, airplanes, cars, or petroleum in the Constitution or the writings of the Founders and their contemporaries, so I can’t rule about those things. Do you have a case about horses and buggies?”

        Quote  Link

      Report

  2. I think the court have consistently been too lenient with regard to the government and data searches. I fail to see why the government can’t get a warrant for any data, GPS, credit card, etc. If they have a target, getting a warrant should be trivial.

      Quote  Link

    Report

  3. The various opinions are quite interesting:

    Thomas writes a dissent that says you don’t own your cell phone records, so the 4th doesn’t apply

    Gorsuch writes a concurrence (that he for some reason calls a dissent) that says you do own your cell phone records so the 4th applies directly.

    Alito writes a dissent in which his main concern is that getting a warrant will burden the police, because of course he does.

      Quote  Link

    Report

    • Gorsuch writes a concurrence (that he for some reason calls a dissent) that says you do own your cell phone records so the 4th applies directly.

      I just read Gorsuch’s dissent.

      I think he has the best solution to all this mess. And I would bet a six pack of very good IPA that all four liberal judges would have voted for his opinion over Roberts.

      But he refused to vote for his own opinion based on a technicality. Probably a very important technicality, but a technicality nevertheless.

      He could have written a revolutionary opinion for the Court. Instead, he just wrote a law review article.

        Quote  Link

      Report

      • I think he has the best solution to all this mess. And I would bet a six pack of very good IPA that all four liberal judges would have voted for his opinion over Roberts.

        As I understand it, though, that’s not how the Court works internally. Senior-most justice (CJ at the top, then ordered by years on the Court) on the majority side gets to assign who writes the majority opinion. In this case, Roberts chose to write it himself; didn’t matter whether any of the other justices preferred Gorsuch’s argument — they lump it or they have to change sides. This is one of my least favorite things about how the Court operates.

        I try to follow in detail all the CO2 rulings. Roberts got burned in the first Massachusetts case, where he wanted it tossed on standing. Kennedy got to assign that one. (Roberts’s dissent was a cross between mean-spirited and a fifth-grader throwing a tantrum.) I note that since, Roberts has voted on the regulate-CO2 side every time, and the opinions have been much narrower with him in control.

          Quote  Link

        Report

        • As I understand it, though, that’s not how the Court works internally. Senior-most justice (CJ at the top, then ordered by years on the Court) on the majority side gets to assign who writes the majority opinion

          You are right about how the process works. They discuss the case and vote, and the senior Justice in the majority assigns the opinion.

          What I meant is that Gorsuch is all in favor of the Fourth Ammendment protecting Carpenter, but, nevertless, he voted against Carpenter and for the Givernment.

          You see, Carpenter argued the Fourth protected his expectation of privacy, Gorsuch believes Carpenter had a property ownership in the cell tower records, an argument that was not made by Carpenter. Rather than present this argument to the Justices before the vote, and perhaps get a new 5-4 majority (Roberts would probably not have gone with Gorsuch), he votes against the result he thinks is correct, because, he argues, the process forces him to. He can’t vote for the correct argument, he says, because it was not presented to him. Instead he votes against the “wrong” argument, the expectation of privacy one.

            Quote  Link

          Report

  4. So, IANAL of course, but why would that stop me from weighing in? I see two issues at play here.

    First, is a property issue. To whit, is data about you, generated and held by a third party as a natural consequence of a business relationship with that party, in some sense your data? TBH, that strikes me as dubious. Just consider those adorable class pictures of your youngun. That’s indisputably data about your child but it’s the express property of the photographer under copyright law. On the other hand, there’s also the thing where a celebrity seems to have a property right in their image, at least sometimes, and your school photog would have to get your permission to use your kid’s photo in promotional materials. So… I dunno.

    The other issue is just a general expectation of privacy. Am I mistaken to think, as a layman, that the lines on that are sorta fuzzy as well? Also, HIPAA. So positive law can define things that way?

    I guess I sorta talked myself out of a brilliant comment here, but I can pretty well concur with Oscar here. Get a fishin’ warrant.

      Quote  Link

    Report

    • That’s indisputably data about your child but it’s the express property of the photographer under copyright law.

      The argument -which Gorsuch makes in his dissent- is that cell phone data is closer to your bank records, which sit in the bank servers, but are considered your property, rather than pictures of you, which is not just data, but also the work product of the photographer, hence the copyright law applying here.

      Am I mistaken to think, as a layman, that the lines on that are sorta fuzzy as well?

      They are very, very, fuzzy, and the Roberts opinion makes them even fuzzier, which is the subject of the Kennedy dissent

        Quote  Link

      Report

Leave a Reply

Your email address will not be published. Required fields are marked *