Below is my column in the Hill Newspaper on the case this week before the Supreme Court on cellphones and privacy. As discussed below, the government’s argument in Carpenter v. United States represents one of the greatest threats to privacy in a generation. One promising sign is that Justice Neil Gorsuch seemed to be siding with privacy in his questions during oral argument.
Here is the column:
The cellphone is rapidly becoming the most universal accessory among human beings anywhere in the world. The expansion of its use and capability has made the cellphone not just a communications device but the planner, personal computer, mapping mechanism and record storage device for most people.
It has another function that most people do not fully appreciate: tracking device. The use of the cellphone as a surveillance tool is at the heart of a major privacy case heard by the Supreme Court this week in Carpenter v. United States. At issue may be the very future of privacy in America. This argument is occurring almost 50 years to the day that the court issued its historic decision in Katz v. United States, which established the current test for privacy. The question is whether the court will celebrate that anniversary with a new ruling effectively gutting privacy for future generations.
The great burden of civil liberties is that we often must fight for our most cherished principles in defense of the least redeeming persons. As is often the case, this controversy starts with a thoroughly unsympathetic character: Timothy Ivory Carpenter, who was the ringleader of a gang accused of a series of robberies including, ironically, the robbery of cellphone stores in and around Detroit. The gang valued smartphones and so did the police. The police asked cellphone carriers to track Carpenter’s phone for 127 days. The companies supplied 12,898 tracking locations from Carpenter’s movements, including locations near the robberies. He was arrested and eventually given 116 years.
Privacy and technology has always been locked in an existential struggle. The Supreme Court has repeatedly (and rather dim wittedly) adopted privacy protections that were tied to fixed technological capability. Technology quickly made a mockery of such protections. For example, the court adopted the “trespass doctrine” in 1928 as the core protection of privacy of the Fourth Amendment, requiring a warrant for any surveillance involving trespass on a target’s person or property. Advances soon made the ill-conceived doctrine irrelevant as the government adopted forms of surveillance like laser-window pickups, parabolic microphones, and other devices that could place citizens under surveillance without touching their homes or property.
The Supreme Court responded in December 1967 with what many consider to be one of its greatest and most eloquent decisions in Katz. That case rejected the trespass doctrine and declared that “the Fourth Amendment protects people, not places.” The decision reversed a long erosion of privacy protection and required greater use of warrants by the government. Under the Katz test, warrants are needed when there is a “reasonable expectation of privacy” by a citizen. However, that test planted the seed for its own demise. The danger is that, as forms of surveillance increase, particularly with private surveillance in workplaces, businesses and homes, our expectations fall. As expectations falls, warrantless surveillance increases further in a vicious cycle that continues to lower privacy protections.
The fact is that my students live in a surveillance-saturated environment and have a fraction of the privacy protections that my generation enjoyed. The Carpenter case shows how flimsy our laws have become in protecting privacy, a trend that has been accelerated by both Democrats and Republicans in Congress who see little advantage in defending privacy over new police powers. Thus, in this case, the police simply avoided asking a judge for a warrant with a showing of probable cause. Notably, probable cause itself is relatively easy to establish and warrants are rarely denied. In this case, it would have been quickly granted. Instead, the police demanded the information under the Stored Communications Act, which requires only a showing that there were “reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.”
Notably, the government is relying on the 1979 decision in Smith v. Maryland, which is itself based on a technological relic. In that case, the court ruled that there is no expectation of privacy in phone numbers because we all “give” the numbers to a third party (the telephone company) to make calls. It is an anachronistic view that raises the image of a switchboard operator as opposed to computerized systems that merely transmit and connect numbers. Yet, the government is arguing that cellphones are no different in “sharing” a signal with companies like AT&T. This ignores that consumers have little choice. Moreover, even under the myth of the Smith case, there is no active sending of the signal for a cellphone user. It is part of this ubiquitous technology. If you have a cellphone, it emits this signal. The government wants the court to treat the use of a cellphone as a type of waiver of privacy.
In 2012, the Supreme Court resisted the encroachment of technological advances in United States v. Jones, when it ruled that police need a warrant to attach a GPS tracker on a car. Now, however, the government can negate that case by just using the cellphone inside the car to achieve that same result. Indeed, the case could negate a host of rulings in allowing the government to follow you within buildings, despite a 2011 ruling barring the warrantless use of thermal devices for such purposes.
The government hopes that the “third-party” mythology will drive a stake into the heart of privacy protections under Katz and these other cases. The fact that a warrant would have been easy to obtain in this case is both telling and chilling. Historically, governments have resisted any limitations on their power even when those limitations are workable and reasonable. Yet, it is not always easy to get a free people to surrender their privacy. To do so, citizens are fed false tradeoffs between privacy and security despite the fact that courts overwhelmingly approve warrants. Indeed, technology has made it faster and easier to obtain warrants by telephone and email.
Members of both parties have yielded to the demands for greater and greater surveillance power. They know that they are rarely given credit for defending privacy but could be blamed for not being sufficiently tough on crime or terrorism. For them, the choice is easy. For the rest of us, it is far more serious. If successful, most citizens will not only be practically forced to carry around a government surveillance device but will literally pay for the privilege. Make no mistake. To paraphrase the AT&T slogan, the government is on the verge of “rethinking possible” under the Fourth Amendment and could force the rest of us to rethink privacy in America.