From Katz To Carpenter: The Supreme Court Hears Case That Could Gut Privacy In the United States

CellPhoneSupreme CourtBelow 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.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

50 thoughts on “From Katz To Carpenter: The Supreme Court Hears Case That Could Gut Privacy In the United States”

  1. The right of Americans to be secure in their papers shall not be violated.

    That is the manifest tenor of the Constitution.

    Surely even the corrupt and treasonous Supreme Court can grasp that.

    Any Justice who nullifies that right, must be impeached for crimes of high office.

    Alexander Hamilton –

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    4th Amendment

    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

  2. The 4th Amendment was genius in its time, but failed to anticipate the development of privacy-dissolving surveillance tech. Organized crime will bring the next major assault on citizen privacy, by purchasing Kompromat information (from a vast network of collectors, dossier-builders and brokers), and then anonymously blackmailing US citizens. The operations will be situated globally, with the blackmailers located offshore beyond the reach of the victim’s law enforcement organization, and hidden behind a TOR-protected wall of repudiation.

    The only way to stop this disaster from brewing over the next 5 years is for Congress to establish a new legal foundation of citizen privacy, where all collection, storage, sale, gifting, sharing, processing and correlation of personal information requires the explicit permission of the citizen, owing to that citizen’s ownership of his personal information (and that which can be surveilled from his goings and conduct). Moreover, asking for permission to acquire and use personal information must include complete, thorough disclosure of the purpose(s) to which the acquiring organization will use the information. Any expansion of purpose would require a re-authorization. Open-ended permissions would be prohibited.

    Under this new legal architecture, the governments would occupy a privileged position of obtaining and using personal information constrained by 4th Amendment principals and procedures. Corporations would not be similarly privileged, and governments would not be able to circumvent this divide through contracting.

    This is the general direction we should be going. Having privacy law butchered by SCOTUS every decade by hearing a single case is about the worst possible way to defend privacy against the onslaught of “open systems” technology, which criminals invariably take advantage of.

    The Kompromat scenario is not preventable unless individuals have the power legally to stop domestic surveillance ops, as once collected domestically, the info will easily spill over into international crime cartels.
    That’s why it’s essential to give individuals ownership rights over their personal information and conduct, while keeping law enforcement in a privileged position to conduct investigations of law-breaking under 4th Amendment constraints.

  3. Wall Streeter Pete Peterson has spent a half a billion dollars to destroy Social Security. Rubio reportedly admitted that the end goal of Trump’s budget is gutting S.S. and Medicare.
    The rich are willing to have the nation led by a Kremlin-linked President (a man who misled the American people telling them he would protect Social Security).
    Repub. senators haven’t even read Trump’s bill. Yet, they are willing to pass whatever legislation the richest 0.1% tell them to pass.
    It was announced today that Mnuchin is under investigation by the treasury I.G. for misleading the public about what the treasury department budget analysis actually found.
    Voting for Republican politicians is unconscionable.

    1. Linda I am still awaiting proof that Trump is in bed with Russia.

      Remember Obama’s fondness for crossing the aisle? Code for uniting DINOs and RINOs. The Grand Bargain he offered which would have cut SS?

      According to Adam Green of the Progressive Change Campaign “The tea party was more useful than Democratic leadership when it came to killing a grand bargain that would have cut Social Security benefits.”

      The corporados R & D are to blame.

      Glad to hear about Munchkin’s travails – too bad Kamala Harris chose not to prosecute him for illegal foreclosures and enabled him

      Drain the swamp irregardless of party affiliation!

      1. The T rump swamp is da one that is going to get cleared out. Don’t think Pence or Ryan will keep many of those gators in their gator shoes around.

    2. Even if T rump vacates we will have his stinking tax hangin around our necks blowin the deficit and increases middle class taxes so he and his oligarch pals can do a money grab.

      1. The goal of the Republican Party is to bankrupt the middle class. Trump’s elimination of the medical expense tax deduction will bankrupt many, including those who saved for nursing home care. The AARP should stop blathering about saving and admit that the legislature is owned by the rich and frugality is pointless.

  4. Why don’t people just turn their phones off? And then back on, briefly, when there is some specific reason to.

    1. JS – I read they can be turned on remotely (as can some cars) best to remove battery This is so dystopian

        1. FWIW

          How can you stop YOUR TV and car spying on you? Experts reveal how to stay safe in light of WikiLeaks bombshell

          Smart TVs, home appliances and even cars can be used to eavesdrop
          Anything voice-activated and internet-connected is susceptible to attacks
          Expert warn users to ensure all gadgets have the latest software installed
          To ensure a connected device can’t spy on you, experts advise owners to unplug it from the grid and the internet and remove the batteries, if possible

          Read more:
          Follow us: @MailOnline on Twitter | DailyMail on Facebook

        2. james — maybe this is the solution for iPhone carriers to block tracking- chip bags =)

          “Tom Colella worked for 20 years as an Instrument Electrical Tradesperson for Aroona Alliance in Western Australia, until he was fired in on Sept 20, 2016 for sneaking off to play golf every Wednesday afternoon and hiding his absences from his employer by putting the PDA that he was obliged to carry — in order to track his movements — in a mylar potato-chip bag that acted as a Faraday cage and prevented it from receiving GPS signals and other location-identifying beacons and storing or communicating his location for his employer.”

  5. Marcy Wheeler does a great job staying on top of security issues.
    Might I suggest:

  6. Privacy is already gutted. (TIN, I hate to break the news to you but you are on camera and have already been scanned for facial recognition while you were driving. You are easy to locate via this method.)

    I wish the SC would set a clear standard of protection. First the amendment does indeed apply to persons. However, there is no reasonable expectation of privacy in this society. Our privacy is completely compromised, both by the govt. and corporation. Therefore, the standard of “reasonable expectation” would be– all surveillance, all the time. This is exactly what should not be allowed and this standard cannot justly be used to rule on the matter.

    Personally, I don’t think the SC cares about the rule of law, our Constitution or our people. They are just another corrupt branch of the govt. Change and the reclamation of our rights will come from the people or it will not come at all.

    1. Jill, it;s “1984” – Orwell’s vision come to life enabled by W and taken further by Obama – that lying POS Clapper. Too bad more people are unawre of William Binney who is (naturally) dismossed as a conspiracy theorist by the lame stream media…

  7. Why is the right wing ignoring the net neutrality issue?
    When oligarchs own all media, with the money to block the delivery of other pov’s, it’s a threat that is equal in consequence to loss of privacy. The nation’s founders sought to protect citizens from both threats to democracy.

    1. The name net neutrality might sound peachy, but that is the surest way to have government and the oligarchy control the media.

  8. Gorusch sounds promising on privacy, but Scalia was the Godfather of Privacy. He helped stop cops from putting GPS on your car w/o a warrant. The phone tracking is even worse. As a PI, I use burners but not because I don’t want to be tracked. Look for the govt. to try and make burners illegal. Then cash will be eliminated. It is becoming a Brave New World!

    1. OT – can someone please explain to me why the Awan case is not moving forward? Why does this hunter get a court date so soon? Imran Awan was arrested in July trying to flee the country. Does that wretched witch DWS have that much power?

      “A court date for a former Democratic IT aide has been postponed by more than a month after the defendant’s attorney, a former Hillary Clinton aide, said he’s seeking to block prosecutors from using evidence that appears to include a government laptop tied to Rep. Debbie Wasserman Schultz.

      “The government has been in discussions with counsel for the defendants regarding complex discovery issues and other legal issues in this case, in particular issues surrounding claims of attorney-client privilege being raised by defendant Imran Awan,” court papers filed Tuesday say.

      “Last night, counsel for both defendants indicated that they need additional time to review and analyze these issues, along with the voluminous discovery the government provided in this case,” according to the documents. “The government consents to this request.”

  9. Private communications on the telephone? That train has left the docks many years ago.

  10. Just when you think, hey, I’m not doing anything illegal anyway, so no problem; along comes law enforcement to seize your bank accounts. Yup, Civil Asset Forfeiture combined with this other 4th amendment abuse of power and forget-about-it.

  11. The following quote is from the article cited by Turley, “Rather than obtain a search warrant, police got court orders to obtain the data under the Stored Communications Act.”

    Without going in depth and understanding the complexity involved in the decision to be made it’s difficult to figure out where to draw the line. The court order was based on the Stored Communications Act. Can I assume at least a portion of that act is under threat and therefore the claim that the individual’s rights were violated is based on a law passed by Congress and that that law has the power to violate individual rights?

  12. Power corrupts – Absolute power corrupts absolutely. One only needs to remember the NSA issue where they stretched and broke the law against listening to calls from US citizens. Hopefully the Court will put a stake through this thinly veiled attempt to further erode our privacy.

  13. It is for these reasons and more that I do not own a smart phone and I only rarely use a cellphone. Firstly, if someone wants to reach me they can contact me on my office / home phone. If I am not available, I don’t want to be.

    Formerly it was that people were criticized for wanting to trade their privacy for security. Now it is that but greater so it is for convenience and entertainment.

    The common dismissal we here from many is “if I did nothing wrong, why do I care if the government watches me?” The truth of the matter is when government law enforcement becomes arbitrary, nobody is safe and innocence becomes a privilege reserved only for the political elite.

    Yet, one aspect we can take some consolation in is that if the expectation is that everyone will put everything onto a smartphone, it might be unconscionable to believe that a person might actually use a file cabinet, typewrite or talk to another in person and only expect to find dirt or evidence in electronic form.

    There are still those who have their information stored on older media in formats not easily translatable with today’s technology. It might be interesting to think that in many years Lempel–Ziv–Welch (LZW) file compression format will be today’s Rongorongo or Linear-A.

    1. Darren, is there no technological solution available to this problem? Turley claims the cell-phone sends the tracking signal whether the user wants the signal sent or not. What would happen to the cell-phone if its user could turn the tracking signal off then turn it back on again? What about a signal-shielding gizmo-contraption more or less the size and shape of a pocket protector? The techno-geeks would like that; wouldn’t they? Turley said we should be rethinking possible privacy.

      1. My technical knowledge is limited in this field but from what I remember if GPS tracking is not enabled then the cell-phone carrier can approximate the user’s location through triangulation among several cell towers.

        There are also a plethora of “free” games people are seduced into using that send tracking data to a company that uses the data to make money in various ways such as pop-up ads based on proximity to restaurants, etc. Also I’ve seen apps where customers can make payments using their phones to merchants. That offers an indirect form of tracking.

  14. Nobody is required to carry a tracking device (AKA a cellphone). The fact that people have become accustomed to the convenience doesn’t negate the fact that we existed just fine before they were invented. I have a 2002 Toyota truck with no GPS technology and it suits my needs for transportation. If I leave my “smart phone” at home, I can go anywhere without being tracked. Intelligent criminals and terrorists use $10 “burn phones” that they don’t register, then use for one call and toss. If a moron commits a crime while carrying an electronic tracking device in his pocket, I can’t say I have any sympathy for his loss of “privacy.”

  15. privacy is toast – nobody wants to be called soft on crime or have a Twit storm sent their way

    not even bothering to get a warrant shows just how much some of our law enforcement groups have became a joke

    1. Is the stage being set for corporate thugs (the oligarchs’ police) instead of tax supported, answerable law enforcement?
      Check out the goals at the Walton’s GenNext site and consider that Rumsfeld and Napolitano were featured at the site. Mainstream media reported about the involvement of the richest 0.1%’ ers, John Arnold and Pew in community surveillance. (Baltimore Sun and Town and Country)

      Relative to privacy, the tech titans, who promote colonialism, pushed laws in the states that mandate collection of copious student data.

      Both Dems and Repubs are a threat but, Repubs are the bigger immediate threat despite Turley’s plug for Gorsuch.

      1. Linda is absolutely correct. The Republicans are more of a threat to socialism/communism than the Democrats who promote socialism/communism.

  16. This issue has raised a lot of dust in the tech community where there have been several articles lately. All of them seem to be against enforcing the law. They want to see it overturned and the Wild West restored.

        1. YNOT – I have been insulted by much better people. 🙂 It has been awhile since I got under your skin. Bothers you doesn’t it? Like an itch, you cannot scratch. BTW, I happen to be up when JT posts the new threads, so of course, I reply to them. So, things are not going to change. That itch will still be there. 🙂

  17. Cigarette smoking is dangerous. Hazzad to your health. Does that mean anything to you?

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