A woman checks her cell phone while waiting in line to enter the Supreme Court on Wednesday to hear the arguments in Carpenter v. United States about government access to cell phone data.
Alex Wong / Getty Images
Alex Wong / Getty Images
A woman checks her cell phone while waiting in line to enter the Supreme Court on Wednesday to hear arguments in Carpenter v. United States about government access to cell phone data.
Alex Wong / Getty Images
In the political world, conservatives often accuse liberals of being soft on crime. In the court of the EE. UU., That's not how it works. For example, in the high court on Wednesday, most ideological line judges indicated that they may be willing to impose new limits on the government's ability to gain access to large amounts of information held by private companies in the digital age.
The question before the court in Carpenter v. United States is whether the police have to obtain a search warrant to obtain tracking information on the cell phone routinely maintained by wireless service providers.
The case arose from a series of armed robberies in 2010 and 2011: robberies, ironically, aimed at stealing hundreds of new cell phones and selling them for tens of thousands of dollars. When police arrested some ring members, the smaller fish involved the ring leader, Timothy Carpenter, with which the police received a court order to have access to 127 days of cell phone tracking records for Carpenter and other members. of the gang. And here, Carpenter's general location information matched the theft locations, and that information was used to help convict him.
Prosecutors obtained a court order before accessing the information, but only had to show that they were looking for evidence relevant to a criminal investigation. Obtaining a search warrant is more difficult and requires more specific information.
The new technology clashes with the doctrine of decades ago
Within the Supreme Court chamber, the judges seemed divided on whether to break with the so-called third-party doctrine. Adopted decades ago, that doctrine says that there is no reasonable expectation of privacy when a person shares information with a third party, for example, the telephone company, which knows what telephone numbers the individual calls and receives. Therefore, the police do not have to obtain a search warrant to obtain access to those numbers.
But in recent years, judges have expressed discomfort with that rule of law applied to the modern digital age, when cell phones carried in a person's pocket can track locations day and night, and when email and Text addresses count a lot about a person's contacts and lifestyle.
The best dilemma was illustrated when Deputy Attorney General Michael Dreeben arrived at the lectern, representing the accusation.
Dreeben usually discusses the most important criminal cases of the government in the Supreme Court. But it was detailed earlier this year to the special investigation of Robert Mueller in Russia. It is a sign of how important is the Supreme Court case on Wednesday that was brought back to discuss it before the judges.
"Technology here is new," acknowledged Dreeben. "But the legal principles are not." Cell phone companies in this and other cases, he said, "essentially function as witnesses who are asked to generate business records of their own transactions with customers."
Supreme Court Chief Justice John Roberts objected that the records "are not simply created by the company." They are, he said, "a joint venture" with the person who carries the phone.
Judge Sonia Sotomayor affirmed that cell phones are different. "Most Americans, I think, still want to avoid Big Brother," he said, adding that while he does not carry his cell phone everywhere, "most young people have their phones in bed with them … It's an appendix. "
Dreeben responded that privacy expectations "arise from the fundamental understanding" that when a letter is sent by mail, the address on the envelope "is available to the government", but not the content inside. In this case, he said, the location tracking information obtained from the wireless service provider is like that address on the envelope.
Judge Elena Kagan appeared to disagree, noting that cell tower records can now track an individual "24/7".
But Dreeben stood firm, holding that when people register with a wireless service provider, they know that their locations can be tracked by cell phone towers. "There is an element of voluntariness" in the registration, as in obtaining a bank account or using a debit card, he said.
Chief Justice Roberts disagreed, noting that in a recent case for which he wrote the opinion, the court ruled that having a smartphone "is not a matter of choice" in the modern digital world. People have to have one to be able to function.
Judge Neil Gorsuch seconded that thought, telling Dreeben: "It seems that your whole argument boils down to whether we get it from a third party, we're fine, regardless of … anything else"
Plotting the unknown
Arguing the accusatory side of the case, Nathan Freed Wessler of the American Civil Liberties Union told the judges that allowing access to cell site location records presents the government "a true time machine , a capacity to press rewind "and learn where we have been for weeks and months. That, he said, upsets the balance of power between people and government that the framers of the Constitution put into practice by banning irrational searches.
Wessler also faced difficult questions, especially in light of the fact that prosecutors in this case did obtain a court order, pursuant to the Stolen Communications Act of 1986, which requires a judge to sign that the information The search is relevant to a criminal investigation.
Judge Anthony Kennedy strongly suggested that, since Congress pbaded laws governing searches like this, the court should defer to its branch of equal to equal. "In an area where it is difficult to draw a line, why should not we give a very significant weight to the determination of Congress, through the Stored Communications Act?" he said.
"Frankly," he continued, it seems to me that the "normal expectation" is that the wireless service providers have the data on their cell phone. I think everyone knows, he observed, adding sadly: "If I know, everyone knows."
Judge Stephen Breyer raised perhaps the most difficult question of the day, from the perspective of law enforcement. He noted that at the beginning of any investigation, whether in terrorism or organized crime, law enforcement does not have enough evidence to obtain a search warrant. Then, agents begin by looking at financial records, credit card records, cell tracking records and even website search records. Requesting a search warrant for all of that would be to create "an open box," warned Breyer. "We do not know where we are going".