On November 29th, 2017, the US Supreme Court oversaw case Carpenter v United States. The court overheard arguments to answer the question, does the warrantless search and seizure of cell phone records, which include the location and movements of cell phone users, violate the Fourth Amendment?
Nathan Freed Wessler, a lawyer with the ACLU, argued against allowing the government to collect information from cellphone carriers without warrants, as this could potentially allowed for mass surveillance and tracking of all cellphone users. Michael R Dreeben of the Department of Justice, argued on behalf of the US government, arguing that the warrantless searches are permitted under existing case law as the information goes to a third party: the phone company.
The case balances the privacy interests of all cellphone users with the interests of the FBI to use information resources to conduct investigations for crimes. In 2011, police arrested Timothy Carpenter based on information they obtained from his cellphone provider. The FBI was able to track the date and time of his calls, as well as his approximate location, based on the connections to the cell towers they were connected to at the time of the calls.
Despite the utility of this information for the FBI, there are multiple privacy concerns that arise, especially if the FBI can obtain this information without a warrant. The ACLU argues that a rule for limiting the duration which the FBI can use this technology for monitoring, however, a precise rule still needs to be created.
Justice Sonia Sotomayor‘s questions focused on the concern of privacy. In essence, the information that cellphone companies have based on customer use could allow for an intrusive level of customer surveillance. Although the judges approached their questions for Wessler and Dreeben from differing legal perspectives, there was a clear shared concern among all the judges, recognizing the need to adopt the law to fit the fast changing nature of digital age technology.
Newly appointed Justice Neil Gorsuch questions seemed to offer support for the requirement of a warrant in these cases through his questions. Rather than using the reasonable expectation of privacy principle, Gorsuch’s line of reasoning seem to suggest that this information was in effect the property of the customer, thus to access this information was a form of trespass. Although these questionings are not an indication of each judges’s votes, they do provide the legal perspective each judge will be using when coming to their decision.
This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the view of the CCLA or PBSC