from the no-love-for-The-Man dept
The Supreme Court’s review of the Carpenter case — dealing with the warrantless collection of cell site location info — kicked off yesterday. Oral arguments featured Nate Wessler of the ACLU facing off against the DOJ’s Michael Dreeben in a case that could drastically alter the Third Party Doctrine.
From the early going, it sounds a bit like the court is leaning towards a drastic alteration. There’s a lot that can be read from the arguments presented by the justices — especially those by Trump appointee Neil Gorsuch. After some of the expected arguments — the Third Party Doctrine, the post-facto privacy invasion that is 100+ days of location tracking, etc. — Gorsuch wades into pretty novel theory based on the property… um… properties of location data gathered by service providers.
Referencing the privacy protections statutorily mandated by 47 USC § 222 (and the Supreme Court’s 2012 decision on GPS tracking devices), Gorsuch goes after the DOJ’s lawyer, asking him why records considered by law to be the property of carrier customers aren’t afforded the same protection as the Fourth Amendment “papers and effects” they keep in their houses.
GORSUCH: [O]ne thing Jones taught us is — and reminded us, really, is that the property-based approach to privacy also has to be considered, not just the reasonable expectation approach. So, if we put aside the reasonable expectation approach for just a moment, Katz, Miller, Smith, and ask what is the property right here, let’s say there is a property right. Let’s say I have a property right in the conversion case I posited with your colleague. So that if someone were to steal my location information from T-Mobile I’d have a conversion claim, for example, against them for the economic value that was stolen. Wouldn’t that, therefore, be a search of my paper or effect under the property-based approach approved and reminded us in Jones?
This wasn’t much fun for the DOJ’s representative:
MR. DREEBEN: I suppose that if you are insisting that I acknowledge that it’s a property right, some consequences are going to follow —
JUSTICE GORSUCH: Right.
MR. DREEBEN: — from that.
JUSTICE GORSUCH: Okay.
JUSTICE GORSUCH: In my — in my hypothetical, if there were a property interest, you’re not here to deny that that would be a search of my paper and effect?
MR. DREEBEN: I’m not here to concede it either.
JUSTICE GORSUCH: Okay.
MR. DREEBEN: And the reason that --
JUSTICE GORSUCH: Okay.
MR. DREEBEN: The reason that I can’t concede it is it’s a property right that resembles no property right that’s existed.
Justice Alito pitched in to point out the likelihood there’s no property interest in location records because customers don’t ask for it to be collected, can’t prevent it from being collected, can’t keep the provider from destroying records and, in some cases, can’t even demand a copy of these records. But while that may have briefly lit a fire of hope in the DOJ’s rep, Gorsuch did his best to extinguish the flame.
MR. DREEBEN: So, Justice Alito, those are a lot of good reasons on why this should not be recognized as a property interest. I can’t think of anything that would be characterized as a property interest with those traits. And it would be a — really a watershed change in the law to treat transferred information as property.
JUSTICE GORSUCH: Well, what does Section 222 do, other than declare this customer proprietary network information –
MR. DREEBEN: So that --
JUSTICE GORSUCH: — that the carrier cannot disclose?
MR. DREEBEN: It — it does that in conjunction with a provision that it shall be disclosed as required by law.
JUSTICE GORSUCH: So — so, let me ask you that. So — so the government can acknowledge a property right but then strip it of any Fourth Amendment protection. Is that the government’s position?
MR. DREEBEN: No, no, but I think that the -
JUSTICE GORSUCH: And so — so could we also say maybe that they also get this property right subject to having a non-Article III judge decide the case, or quartering of troops in your home?1 Could we strip your property interests of all constitutional protection?
MR. DREEBEN: Well, those are pretty far afield. I — I think what’s going on here --
JUSTICE GORSUCH: Are they?
1 Shout-out to the least hardest working legal advocates in the nation.
After some discussion about this statute protecting the privacy of info gathered by cell phone companies, along with the government repeatedly pointing to the Third Party Doctrine, the justices discuss the sensitivity of the information being obtained without a warrant, pushing the argument back from the property side Gorsuch proposed to the detailed data being gathered daily (bank records are mentioned) by a variety of third parties. Again, the DOJ argues that no warrants are needed because the “search” isn’t performed by the government, but rather by the third parties themselves and the results handed over to law enforcement.
Justice Kagan had some problems with this particular approach.
JUSTICE KAGAN: I understand what you’re saying, you’re basically saying, well, because the government is going to a third-party here and doing it by subpoena, it doesn’t matter how sensitive the information is. It doesn’t matter whether there’s really a lack of voluntariness on the individual’s part in terms of conveying that information to the third-party. And we could go on and we could give, you know, other factors that you might think in a sensible world would matter to this question. And you’re saying that all of that is trumped by the fact that the government is doing this by subpoena, rather than by setting up its own cell towers.
Which the government can certainly do. (See also: Stingray devices. This is why this case about historical cell site location info will have a ripple effect on Stingray usage no matter which way it’s decided.)
Justice Gorsuch takes this assertion and brings it full circle to the creation of the Constitution and its resulting amendments.
JUSTICE GORSUCH: Mr. Dreeben, it seems like your whole argument boils down to if we get it from a third-party we’re okay, regardless of property interest, regardless of anything else. But how does that fit with the original understanding of the Constitution and writs of assistance? You know, John Adams said one of the reasons for the war was the use by the government of third parties to obtain information forced them to help as their snitches and snoops. Why — why isn’t this argument exactly what the framers were concerned about?
MR. DREEBEN: Well, I think that those — those were writs that allowed people acting under governmental power to enter any place they wanted to search for anything that they wanted.
JUSTICE GORSUCH: Isn’t that exactly your argument here, that so long as a third party’s involved, we can get anything we want?
MR. DREEBEN: Well, I think the search is being carried out under a writ of assistance by a government agent, operating under government authority; whereas here, we — the — if there’s a search in the acquisition of cell site information, then it’s the cell site company that is acquiring that information without governmental instigation, without –
JUSTICE GORSUCH: The subpoena –
MR. DREEBEN: — governmental agency --
JUSTICE GORSUCH: — being, though, the equivalent of a writ of assistance?
MR. DREEBEN: Oh, I don’t think a subpoena is an equivalent of a writ of assistance. A writ of assistance allowed the agent to go into any house, to rip open anything looking for contraband, no limitations.
JUSTICE GORSUCH: Yeah. And you can subpoena anything that any company has anywhere in the globe regardless of any property rights, regardless of any privacy interests, simply because it’s a third-party?
The Chief Justice didn’t appear too impressed by this line of reasoning either.
MR. DREEBEN: So I — I think that, as Justice Alito was explaining, there is a traditional understanding that dates back to the time of the founding that subpoenas stand on a different footing from search warrants. And they do that because they are less intrusive, since they do not require the government going into private property and searching itself.
CHIEF JUSTICE ROBERTS: Why does that –
MR. DREEBEN: And --
CHIEF JUSTICE ROBERTS: — why does that make a difference? The subpoena tells the person who gets it: this is what you have to do.
MR. DREEBEN: Well, I think that most —
CHIEF JUSTICE ROBERTS: Why is that less intrusive? The whole question is whether the information is accessible to the government.
But that’s exactly the argument the DOJ is making. No matter how long the records go back, no matter how accurate cell tower location data is, no matter how many points of data each citizen carrying a cell phone creates each day, it should all be no more than a subpoena away because the data is being held by a third party. This is Nate Wessler’s summation of the government’s assertions:
I just want to highlight that the — the government, Mr. Dreeben, as I heard him, conceded that the precision of these records doesn’t matter at all to the government’s theory here. They could be precise, I take it, to within a single inch. And the fact that a third party has custody of them would, in the government’s view, vitiate any expectation of privacy, which we think would be a very destructive rule.
It’s too early to say how this will turn out, but the with the exception of Justice Alito, very little sympathy was shown for the government’s arguments. The justices also had problems with differentiating between short-term collection of CSLI and lengthier collections. It did raise this question in the Jones case — suggesting long-term monitoring was more invasive than short-term tracking, but did not come to a bright line conclusion. Carpenter’s reps are suggesting a 24-hour limit for warrantless CSLI access.
This will be a tough line to draw, especially as courts have pointed out before rights do not spring into existence out of nowhere. If 24 hours isn’t a Fourth Amendment violation, why should three months be a problem? Or half a year? What then would stop the government from serving successive subpoenas to gather multiple days of location info, thus rendering the bright line irrelevant? If a decision is going to be made — one that “fundamentally changes the application of the Fourth Amendment to subpoenas” (as Justice Alito put it) — it really has to be all or nothing.
But the early skepticism of the government’s arguments expressed here is a positive development. This shows the court isn’t interested in rubber stamping an extension of the Third Party Doctrine nearly 40 years after the Smith v. Maryland decision. Given the amount of information gathered by third parties, it’s time for some fundamental change.
Filed Under: 4th amendment, carpenter, privacy, property rights, scotus, supreme court, third party doctrine