New York Times

Justices Seem Ready to Boost Protection of Digital Privacy

November 30, 2017

by Adam Liptak

WASHINGTON — At a lively Supreme Court argument on Wednesday, a majority of the justices seemed troubled by the government’s ability to acquire troves of digital data without a warrant.

“Most Americans, I still think, want to avoid Big Brother,” said Justice Sonia Sotomayor. “They want to avoid the concept that government will be able to see and locate you anywhere you are, at any point in time.”

The argument lasted 20 minutes longer than the usual hour. By its conclusion, at least five justices seemed prepared to limit the government’s power to obtain records from cellphone companies showing their customers’ locations over long periods of time. But there was no consensus about a rationale for a decision or about how far the court was prepared to go to reshape longstanding constitutional doctrines that allow the government to obtain business records held by third parties.

The case concerns Timothy Ivory Carpenter, who was convicted of participating in a series of robberies, based in part on records provided by his cellular carrier showing his movements over several months. Nathan Freed Wessler, a lawyer for Mr. Carpenter, said prosecutors had violated the Fourth Amendment, which bars unreasonable searches, by failing to get a warrant for the information.

A ruling in Mr. Carpenter’s favor could revise a fundamental Fourth Amendment principle: that people have no reasonable expectation of privacy when they voluntarily turn over information to a third party, like a phone company.

Some justices said they were wary of acting rashly and worried about the consequences of a ruling in favor of Mr. Carpenter.

“This new technology is raising very serious privacy concerns,” Justice Samuel A. Alito Jr. told Mr. Wessler, “but I need to know how much of existing precedent you want us to overrule or declare obsolete.”

The court’s decision in the case, Carpenter v. United States, No. 16-402, will apply the Fourth Amendment, drafted in the 18th century, to a world in which people’s movements are continually recorded by devices in their pockets and cars, by toll plazas and by transit systems.

“A great many highly sensitive digital records,” Mr. Wessler said, “like search queries entered into Google, a person’s complete web browsing history showing everything we read online, medical information or fertility tracking data from a smartphone would be vulnerable” unless the Supreme Court acts.

The justices seemed at odds over how to address the issue. Several said the problem was that the level of detail in Mr. Carpenter’s phone records violated his reasonable expectation of privacy. Others, notably Justice Neil M. Gorsuch, took a different approach, saying the problem was that the records were his property and should not have been disclosed without his consent or a warrant.

Michael R. Dreeben, a lawyer for the federal government, urged the justices not to take drastic action. “The technology here is new,” he said, “but the legal principles that this court has articulated under the Fourth Amendment are not.”

Recent Supreme Court decisions have expressed uneasiness with allowing the government to have unfettered access to vast amounts of digital data. The court limited the government’s ability to use GPS devices to track suspects’ movements in 2012 in United States v. Jones, and it required a warrant to search the cellphones of people placed under arrest in 2014 in Riley v. California.

Justice Elena Kagan said the case concerning GPS devices provided a close analogy to the new case, particularly as cell tower location data becomes more precise. “In both cases,” she said, “you have a new technology that allows for 24/7 tracking and a conclusion by a number of justices in Jones that that was an altogether new and different thing that did intrude on people’s expectations of who would be watching them when.”

But the majority in the Jones decision relied on property rights to justify the ruling, saying the police were not entitled to attach a device to a suspect’s car. Judge Gorsuch indicated that a similar theory could justify a ruling for Mr. Carpenter.

“One thing Jones taught us — and reminded us, really — is that the property-based approach to privacy also has to be considered, not just the reasonable expectation approach,” he said.

Older cases have concluded that information turned over to third parties is fair game. In 1979, in Smith v. Maryland, for instance, the Supreme Court ruled that a robbery suspect had no reasonable expectation that his right to privacy extended to the numbers dialed from his landline telephone. In 1976, in United States v. Miller, the court said much the same thing about bank records.

Justice Alito said the earlier decisions tolerated substantial intrusions into privacy. “Why is cell site location information more sensitive than bank records, particularly today, when a lot of people don’t use cash much, if at all?” he asked. “It will not only disclose everything that the person buys, it will not only disclose locations, but it will disclose things that can be very sensitive. “

Mr. Wessler said the location information generated by cell towers was more intrusive. “Never has the government had this kind of time machine that allows them to aggregate a long period of people’s movements over time,” he said.

Chief Justice John G. Roberts Jr. said it may be a fiction to say that using a cellphone involves a voluntary decision to turn over information to a cellular carrier. “You really don’t have a choice these days if you want to have a cellphone,” he said.

Justice Sotomayor went further. “I don’t, but I know that most young people have the phones in the bed with them,” she said. “I know people who take phones into public restrooms. They take them with them everywhere. It’s an appendage now for some people.”

A federal law, the Stored Communications Act, does require prosecutors to go to court to obtain tracking data, but the showing they must make under the law is not probable cause, the standard for a warrant. Instead, they must demonstrate only that there were “specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.”

Justice Anthony M. Kennedy said the balance struck by Congress was entitled to deference. “Why shouldn’t we give very significant weight to the Congress’s determination?” he asked.

Justice Stephen G. Breyer, who seemed inclined to vote for Mr. Carpenter, worried that the court’s decision could be too sweeping, imperiling all sorts of investigations.

Several justices questioned whether people using cellphones know that they are leaving a digital trail of their whereabouts over time. Justice Kennedy said it was common knowledge.

“If I know it,” he said, “everybody does.”