On Nov. 29, the United States Supreme Court heard oral arguments in what is sure to be one of the most important Fourth Amendment decisions in decades: Carpenter v. United States. The gist of the question before the Court is whether the government can acquire cell-site location data without a warrant, a critical line to draw in the age of ubiquitous smart phones and other internet-connected devices. 

Predicting the Court’s decision based on the oral argument is a notoriously risky proposition. In fact, most lawyers will tell you that oral arguments have very little to do with the outcome of Supreme Court cases, and if you really want to know what the justices are considering, it is more useful to simply read the parties’ briefs.

The justices’ questions in Carpenter may shed some valuable light on what they find most concerning and provide some insight into how the Court’s newest member, Justice Neil Gorsuch, thinks about the Fourth Amendment in the internet age.

That disclaimer aside, however, the justices’ questions in Carpenter may shed some valuable light on what they find most concerning and provide some insight into how the Court’s newest member, Justice Neil Gorsuch, thinks about the Fourth Amendment in the internet age.

In brief, the case centered around the FBI’s acquisition of a robbery suspect’s historical cell-site location data after the arrest of several of his criminal colleagues. The FBI obtained these records via an order issued by a magistrate judge under the Stored Communications Act, but did not obtain a warrant based on probable cause. The FBI used this order to obtain 127 days of Carpenter’s cellphone records, and introduced these records at trial to show Carpenter’s proximity to a series of robberies. Carpenter was convicted of several crimes related to the robberies, and appealed his conviction on the basis that the government’s acquisition of his historical cell-site location information violated his Fourth Amendment rights.

Quick-and-dirty summary

Throughout the appeals process, the government has relied heavily on two cases decided in the 1970s: United States v. Miller and Smith v. Maryland. In 1976, Miller held that it was not a violation of the Fourth Amendment for a bank to turn over a suspect’s records in response to a government subpoena (a court order issued based on a lower standard than a probable-cause warrant) as the suspect had voluntarily provided that information to the bank. Smith determined in 1979 that the phone numbers dialed by a suspect were voluntarily provided to the phone company and thus are not subject to an expectation of privacy (which would require the government to obtain a warrant to compel their production). Under the government’s theory of the case, Carpenter’s cell-site information was voluntarily disclosed to his cell provider, similar to the numbers in Smith, and the disclosure of those records pursuant to a lower-standard court order is analogous to the production of banking records permitted in Miller. 

In contrast, Carpenter argued that two recent cases challenge the application of Smith and Miller to cellphone metadata: United States v. Jones and Riley v. California. In 2012, Jones determined that the warrantless placement of a GPS tracking device on a suspect’s car violated the suspect’s reasonable expectation of privacy. In 2014, Riley held that cellphones cannot be searched by law enforcement without a warrant, given the wealth of intimate detail about the owner’s life they now hold.

The justices’ questions demonstrate several different “trouble spots” in crafting a workable rule for the internet age.

Highlights from the arguments

Carpenter’s attorney, Nathan Wessler of the ACLU, argued the case need not overturn the third-party rule from Smith; instead, the amount of information available for disclosure via extended after-the-fact disclosure of cell records pulled the case into the realm of Jones, where the long-term warrantless collection of location information was ruled a search.

Much of the questioning of Carpenter’s attorney centered on the justices’ difficulties with a “24-hour rule” suggested by Carpenter’s attorney—essentially, that law enforcement should be able to acquire a brief amount of location information from a service provider without a warrant (a 24-hour period) but that longer periods such as the 127-day span in the case required a warrant.

The justices’ questions demonstrate several different “trouble spots” in crafting a workable rule for the internet age.

At different points, Justices Alito, Breyer, Kennedy, Ginsburg, Sotomayor and Chief Justice Roberts all pressed Carpenter’s attorney on this point. Justice Sotomayor suggested that a better approach might be to permit requests for periods of information so long as they were contiguous with the alleged offense, rather than determine an arbitrary chronological cutoff after which a warrant would be required.

Justices Alito and Kennedy expressed skepticism with the argument that extended collection of CLSI could prove more sensitive than the disclosure of banking records, asking Carpenter’s attorney to explain how detailed personal financial histories (obtainable without warrant per Miller) could be described as more sensitive than the information at issue in the case. Alito and Kennedy’s questions also explored whether disclosure of location information via phone’s automated pings of cell towers and wireless access points was “voluntary” in the same way as a consumer creating a financial record via a purchase or a call record by dialing a phone number. Justice Alito suggested that cell providers’ standard service contracts may put subscribers on notice that the information about a call could be disclosed to the government, citing language in MetroPCS’ standard contract.  

Justice Kennedy suggested that the mechanisms offered by Congress in the SCA provide a guide to what privacy interests pertained to different types of electronic communications information, and later questioned whether it was actually reasonable to think that people would not expect businesses to retain their location information (and thus that it might be disclosed to law enforcement).

Questioning of the government’s attorney, Deputy Solicitor General Michael Dreeben, focused more heavily on the analogy of cell records to the types of information disclosed in Miller and Smith.

Justices Sotomayor, Kagan and Gorsuch all pressed the government on the evolving precision of the cell technology at issue as it related to the sensitivity of the information disclosed, and the similarity of extended location tracking via cell phone to the GPS tracking at issue in Jones. Justices Breyer and Kagan also pressed Dreeben on whether there was analogous sensitivity to financial records when considering an extended, specific record of a person’s physical location, particularly given the perpetually increasing precision of the available information. 

There seemed to be a general consensus in tone that the Court was uncomfortable drawing a “bright line” where collection of information became a search after it covered a certain amount of time.

Justice Gorsuch additionally raised an interesting alternative approach to the privacy interest at issue when questioning both parties. Justice Gorsuch focused on a “property-based” approach; he asked whether the defendant held actionable property rights in the information disclosed to law enforcement, and if so, whether that might indicate that the Fourth Amendment’s protection of “papers and effects” might extend to the type of information disclosed. If that’s the case, Gorsuch argued, even Congress could not “strip the property asset of Fourth Amendment protection” via a statute like the SCA. 

Crystal ball

Despite my earlier admonition against predicting a case’s outcome based on oral arguments, I think the justice’s questions do reveal some likely aspects of the eventual opinion.

First, there seemed to be a general consensus in tone that the Court was uncomfortable drawing a “bright line” where collection of information became a search after it covered a certain amount of time.

Second, I am willing to predict that there will be at least five votes for Carpenter’s position, but that the Court will stop short of overturning Smith or Miller and instead follow the line of Jones and contain the ruling to the sensitivity of location information specifically. We may also see a concurrence from Justice Gorsuch advancing the “property-based” theory he raised during argument.  

But, for now, we will have to be patient. A decision likely won't come down until next year before the term ends in June. 

photo credit: dog97209 US Supreme Court Washington DC via photopin (license)