Jay Michaelson, 6.22.18<\/p>\n
The conservative justice bucked right-wingers and said police must get a warrant before searching cellphone location data.<\/p>\n
In a surprising decision, Chief Justice John Roberts joined the Supreme Court\u2019s four liberals in holding that the government must obtain a warrant in order to search your cellphone location data. \u00a0The decision is a huge win for privacy rights in the digital era, and signals a new phase in the Supreme Court\u2019s protection of civil liberties in the 21st century.<\/p>\n
It also makes one wonder if Chief Justice Roberts might become the Justice Kennedy of the next twenty years: voting conservatively on most issues but siding with liberals on others.<\/p>\n
The facts of the case, Carpenter v. U.S.,<\/a> are simple: Police obtained the cellphone location data of a suspect in a robbery case and used it to convict him. \u00a0The question was whether getting that data constitutes a \u201csearch\u201d under the Fourth Amendment, which would require a warrant before conducting it.<\/p>\n As of today, the answer is yes.<\/p>\n The relevant precedent was so close, the answer was practically a judicial coin flip. \u00a0On the one hand, the Court has ruled in the past that information you share with a third party (in this case, your cellular provider) is no longer private, and so no warrant is needed. \u00a0That would indicate no warrant is needed here.<\/p>\n On the other hand, we live in a new world in which cellphones are \u201calmost a feature of human anatomy,\u201d in the words of one prior case, and the location sensing is necessary for them to work. \u00a0Should the government really be able to track the location of anyone in the country, all the time, without even obtaining a warrant?<\/p>\n Nate Freed Wessler, a lawyer at the ACLU, argued the case before the Court. \u00a0In an interview with The Daily Beast shortly before the decision came down, he told me that the case is important for two reasons.<\/p>\n \u201cMost immediately, this case addresses the protections we have in our voluminous quantities of location info held by our cellphone companies. Those records can show where we go over the course of every day for years on end, reveling extra details about activities relationships and patterns of life.\u201d<\/p>\n \u201cMore broadly,\u201d Wessler continued, \u201cthis is the Supreme Court\u2019s first opportunity in four decades to address the fundamental question of how the Fourth Amendment protects highly sensitive personal records held by the companies that we have relationships with.\u201d<\/p>\n That question is of interest not only to privacy nerds but is now squarely in the mainstream, particularly in the wake of the Facebook-Cambridge Analytica data scandal. \u00a0That issue isn\u2019t affected by Carpenter, because it was about two private companies doing business, rather than the government. \u00a0But it highlights the ways in which, to live in 21st century world, we all share more and more information without even knowing it.<\/p>\n \u201cWe can\u2019t go about our lives without leaving these highly revealing crumbs behind us,\u201d Wessler said. \u00a0\u201cIt\u2019s much more than location data: it\u2019s the content of emails, information about homes collected by smart devices (for example, smart thermostat that knows which rooms you\u2019re in), even the state of our bodies\u2014heartrate data from a smartwatch which we share with Apple, for example.\u201d<\/p>\n The decision in Carpenter \u201callows us to live our modern lives with an assurance that police will have to go to a judge to get a warrant before dipping into this really sensitive information.\u201d<\/p>\n There were good reasons to doubt that the Court would rule this way, however.<\/p>\n First, today\u2019s decision is a clear break from the court\u2019s precedents on information shared with third parties, set forth in the Smith and Miller cases. \u00a0But, wrote the Chief Justice, \u201cwhen 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\u2019s movements.\u201d<\/p>\n Indeed, Chief Justice Roberts continued:<\/p>\n The Government\u2019s position fails to contend with the seismic shifts in digital technology that made possible the tracking of not only Carpenter\u2019s location but also everyone else\u2019s, not for a short period but for years and years. Sprint Corporation [the cell carrier in this case] and its competitors are not your typical witnesses. Unlike the nosy neighbor who keeps an eye on comings and goings, they are ever alert, and their memory is nearly infallible. There is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today.<\/p>\n<\/div>\n<\/div>\n<\/div>\n Second, the court\u2019s conservative wing\u2014apparently not including Chief Justice Roberts\u2014has grown increasingly skeptical of the way privacy rights are understood<\/a> today. \u00a0\u00a0As I noted back in November<\/a>, when Carpenter was argued, the court\u2019s conservative wing is increasingly enamored of \u201coriginalism,\u201d a faux-historical doctrine that decides cases based on what the Founders supposedly intended back in 1791.<\/p>\n That doctrine is actually highly selective\u2014the Founders would have banned nearly all corporations<\/a>, for example\u2014but it has become dogma in the far-right circles of the Federalist Society, the source for Donald Trump\u2019s far-right judicial nominees, including Justice Gorsuch, because it would eliminate 20th and 21st century applications of constitutional principles to newly articulated issues such as abortion, LGBT equality, and racial discrimination.<\/p>\n Needless to say, the Founders didn\u2019t say much about cellphone location data<\/a>. \u00a0Indeed, the text of the Fourth Amendment only protects \u201c[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.\u201d \u00a0Is cellphone location data a \u201cpaper\u201d or \u201ceffect?\u201d Maybe, but that hardly seems like \u201coriginalism\u201d anymore.<\/p>\n For these reasons, Justices Thomas, Alito, and Gorsuch each (separately) dissented from the majority opinion. \u00a0(Justice Kennedy also dissented, but on different grounds: that the location data is imprecise enough that it is not really private.) \u00a0With abundant citations to 18th century texts, each of them held that because the location records are the property of the cellphone company, not the individual user, people like Carpenter have no privacy rights in what they contain. \u00a0You have privacy rights in your property, period.<\/p>\n Interestingly, Justice Gorsuch speculated that it might be possible to articulate a property interest in records like cellphone location data, even if it\u2019s not exactly your property. \u00a0Unfortunately, since no one but Justice Gorsuch thinks this way, that theory was not put forward in this case.<\/p>\n Chief Justice Roberts, however, was the real surprise. Unlike the three most conservative justices, he declined to adopt a restrictive, \u201coriginalist\u201d theory of Fourth Amendment Rights. \u00a0But unlike Justice Kennedy, he eviscerated the doctrine that if you share information with others, you no longer have a privacy interest in it. That doctrine may have made sense in 1979, but it doesn\u2019t make sense today.<\/p>\n In some ways, though, the Court\u2019s opinion is more conservative than the conservative dissents. \u00a0There are many kinds of conservatives after all: law-and-order conservatives supported the government in this case, but libertarian conservatives opposed it. \u00a0And the Court\u2019s opinion is a civil libertarian rallying cry. For digital rights, is as much a clarion call as the Obergefell case was for LGBT rights.<\/p>\n