Fifty years ago, the Supreme Court changed its mind about what the Fourth Amendment protects, switching its focus from physical places to people. On Wednesday, in a hearing that ran considerably longer than the norm, the Justices explored a new focus for the digital age: the cellphone.
To be specific, the Justices spent 82 minutes (22 minutes extra, indulged by the Court) on a plea for constitutional privacy for the electronic signals that a cellphone sends out whenever it is used — to make or take a call or a text message, to log onto any website, to access any data source. Each signal is recorded by a relay tower nearby, and the service provider thus makes a record of where the device – and its holder – were when used.
In the case before the Court, prosecutors got 127 days’ worth of those records from two telephone companies, and the data placed Timothy Ivory Carpenter’s cellphone near the site of eight robberies in Michigan and Ohio, helping to convict him and sending him to prison for about 116 years.
As the hearing unfolded, with all Justices except a silent Clarence Thomas taking active roles, it was clear that the outcome of the case depends upon answers to three questions: first, are those records of user locations – and what location itself suggests about activity in that area — something that the user expects will be kept private and not readily handed over to the government; second, is there any way the Court can put limits on government access to that data that will not undermine prior rulings allowing prosecutors to get information from anyone who receives records or information from a person who becomes a crime suspect, and, third, if the Court puts new constitutional limits on government access to that location data, should the limit be measured in how much data has been gathered and how long the gathering of that data continued.
From their comments and questions, most of the Justices sounded as if they might wind up on either side of those questions. There was evident concern about a threat of new technology to privacy, but there was obvious concern about shutting off too much information to crime-solvers. Cellphone location data has become a very handy piece of evidence for prosecutors, because it is getting more and more precise.
The Justices did not get a lot of help from the two lawyers who argued the case, because they were so committed to the central point each had come prepared to push that the Justices could not move them to explore alternative approaches.
Carpenter’s lawyer, Nathan Freed Wessler, a New York City lawyer with the American Civil Liberties Union, stayed very close to his main argument that the Court needed to start all over to make a new law of data privacy but to do so without disturbing older precedents that had diminished privacy – a feat that puzzled some of the Justices. And he had a good deal of difficulty defining how much location data deserved constitutional protection.
The federal government’s lawyer, Deputy U.S. Solicitor General Michael R. Dreeben, was determined to get a flat reaffirmation of the idea that, when the government asks someone else to hand over information they have gathered from a person who is a suspect, no invasion of privacy is involved so the Fourth Amendment has no role to play. It was obvious that there was little if any real enthusiasm on the bench for such a simple outcome.
Because the constitutional issues in the case are as important and as complex as they are, it seemed after the argument that the Justices might well wind up following their usual conflicting constitutional preferences, and thus splitting deeply. If that were to happen, a tie-breaking role might – as so often happens – fall to Justice Anthony M. Kennedy.
Kennedy gave an early sign that he was not impressed with an idea that is absolutely necessary if cellphone privacy is to be the winner in Carpenter’s case.
The idea goes back to the half-century-old precedent that laid the foundation for much of modern Fourth Amendment law. That was the December 1967 decision in the case of Katz v. United States, a case that for the first time declared a right of privacy in the conversation that an individual has in a public telephone booth. It was not the place that counted, the Court said, it was the person, and what that person meant to do in closing the door of the booth – that is, to have privacy for the call.
The abiding meaning of that theory is that, if a private person does not voluntarily expose to the public or to someone else something that they want to keep to themselves, the Fourth Amendment protects that privacy. But, if they choose to disclose it, the constitutional protection ceases.
Two years after the Katz decision, in the case of Smith v. Maryland, the Court refused to provide privacy for the records that a telephone company keeps about numbers that a customer called on the phone. By placing calls, that decision said, the customer voluntarily makes the numbers public to the telephone company, so it can turn those over to police if asked without violating the customer’s privacy or the Fourth Amendment.
The continuing force of that 1969 decision is directly at issue now in Carpenter’s case, and some of the Justices seemed skeptical that they could rule as Carpenter’s lawyer wanted without second-guessing or relaxing the Smith precedent, but several of them also seemed doubtful that they could simply follow that precedent without some modification for the deep new privacy threats of the digital age.
Kennedy, however, gave what seemed like a quite strong signal that he was untroubled by the idea that lay behind the Smith decision. A person who uses a cellphone in a public place, he said, is in public, “people can see you.” The location, he added, is “much less private” than, say, the contents of records that a person hands over to someone else, such as a business.
And, later on in the hearing, when other Justices were debating whether a cellphone user is aware that the telephone company is gathering data about where they use the phone, Kennedy flatly argued that the customer surely knows that. “If we’re going to talk about normal expectations,” he commented, “it seems to me that there’s a much more normal expectation that businesses have your cellphone data. I think everybody, almost everybody, knows that. If I know it, everybody does.”
His comments, though few compared to what the others were saying, seemed to be edging close to — if not fully embracing — the government’s argument about voluntary disclosure of where one uses a cellphone.
Among the other Justices, Chief Justice John G. Roberts seemed much in the middle as did the newest Justice, Neil M. Gorsuch. (who seemed intent on exploring a theory of property rights — a theory that did not seem to point in favor of either side in the case). Justices Samuel A. Alito, Jr., while showing some concern about modern threats to privacy, spent most of his time trying to protect the precedents that tend to favor prosecutors. Justice Stephen G. Breyer took comparatively little role, and seemed uncertain about how to view the case. Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor left little doubt that they were deeply concerned that privacy was under threat from modern technology.
The case is expected to be decided sometime next year, probably late in the current term that runs through June.
Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.
