Conservative and liberal justices are coming together in rare unison in a case that’s likely to have enormous consequences for Americans’ digital information rights.
On Wednesday, the nation’s highest court heard arguments for Carpenter v. United States, which raises the question of whether government violates the Fourth Amendment when it accesses a person’s cell history and locations without a warrant.
The case began with Timothy Carpenter, who was convicted of several armed robberies in Ohio and Michigan.
Police established that Carpenter was near the scene of the robberies by securing his cell site location information from his cell phone carrier, CNBC reports.
Carpenter appealed his case to Cincinnati’s 6th U.S. Circuit Court of Appeals–which found that no warrant was necessary to access his cellphone data–before bringing the case to the Supreme Court.
American Civil Liberties Union lawyers represent Carpenter in the case.
Justices Elena Kagan and Sonia Sotomayor sided with Carpenter. Kagan compared this case to United States v. Jones, a 2012 case that said police violate a suspect’s property rights when they physically trespass to obtain information.
When Deputy Solicitor General Michael Dreeben cited the Smith v. Maryland precedent that individuals have no expectation of privacy in the phone numbers they voluntarily surrender to third parties, Sotomayor argued:
“I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”
Surprisingly, Justice Neil Gorsuch, a Trump appointee, joined in with Justices Kagan and Sotomayor, albeit with a different line of reasoning.
“Mr. Dreeben, I’d like to—I’d like to drill down on that and return to Justice Kagan’s question. You know, the facts here wind up looking a lot like Jones.
One 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?”
Justice Gorsuch concluded by discussing the original intentions of the Founding Fathers.
“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?”
It was shocking to see justices so ideologically different come together on the same side of an issue.
Carpenter v. United States is still pending. Whatever the Court ultimately decides, the ruling is sure to have a significant legal impact for years to come.