High Court Bends for Digital Privacy in Cell-Search Case

WASHINGTON (CN) – A hotly anticipated cellphone data battle that went before the Supreme Court on Wednesday has experts predicting an endorsement this term of digital privacy rights.

The case stems from the 116-year sentence given to Timothy Carpenter after police used location data scooped up from his cellular provider to connect him to a series of armed robberies at Detroit area Radio Shacks and T-Mobile stores in 2011.

Though officers obtained these records without a warrant, the government says no Fourth Amendment violation occurred because the Stored Communications Act covers any wire or electronic communication records that are deemed specifically related to an ongoing investigation.

After observing Supreme Court oral arguments on the case this morning, Mike Price, senior counsel at New York University’s Brennan Center for Justice, said a majority of the justices appeared to side with Carpenter this morning.

“But there was marked disagreement about how to get there,” Price said in an interview.  “If you start counting votes, you can probably get to five or six without too much difficulty but those justices all had very different takes on the right approach to resolving the case.”

Justice Stephen Breyer for one pushed for a bright line on how to distinguish Carpenter’s case from other digital-privacy battles like Smith v. Maryland or United States v. Miller.

In Smith, the court ruled the government could use a pen register, a device that records phone numbers but not call content, during an investigation. This was not technically considered a search because a caller couldn’t reasonably expect those numbers to remain private since phone companies retain that information for business use.

Miller meanwhile established a key element of Wednesday’s hearing known as the third-party doctrine.

The Electronic Frontier Foundation, a digital-privacy group that filed an amicus brief in support of Carpenter, explains that this doctrine means that information a person voluntarily shares with a third party isn’t protected under the Fourth Amendment.

Justice Neil Gorsuch focused on Carpenter’s case through a property-rights lens.

“Say a thief broke into a T-Mobile, stole [call information] and sought to make economic value of it,” Gorsuch said. “Would you have a conversion? Would your client have a conversion claim, for example under state law?”

Carpenter’s attorney, Nathan Wessler with the American Civil Liberties Union, said it would be possible since conversion is the closest “sort of tort analogue” available.

Gorsuch also pressed Deputy U.S. Solicitor General Michael Dreeben on the topic, admitting that he struggled to reconcile Carpenter with another privacy case,  United States v. Jones.

“If we put aside reasonable-expectation approach for a just a moment … and ask what the property right is here … if someone were to steal my information from a T-Mobile, I’d have a conversion claim against them for the economic value that was stolen,” Gorsuch said.

“Wouldn’t that, therefore, be a search of my paper or effect under the property-based approach and reminded us in Jones?”

Dreeben resisted the hypothetical, saying call information should be considered a transfer of information not personal property.

Gorsuch prodded Dreeben for “fighting the hypothetical.”

“I’m not sure,” Dreeben said. “The reason that I’m not sure is there has never been a property right recognized in information that’s conveyed to a business of this character.”

Justice Samuel Alito appeared to support Dreeben as well.

“I was trying to think of an example of a situation in which a person would have a property right in information that the person doesn’t ask a third party to create, the person can’t force the third party to create it or gather it,” Alito said. “The person can’t prevent the company from gathering it. The person can’t force the company to destroy it. And according to [Carpenter,] the customer doesn’t even have the right to get the information.

Dreeben agreed, saying Alito’s points proved why Carpenter’s case could not be recognized as a property interest.

“I can’t think of anything that would be characterized as a property interest with those traits,” Dreeben said. “And it would be a – really a watershed change in the law to treat transferred information as property.”

Gorsuch appeared unsatisfied with the government’s stance that third-party doctrine removed all concern over property rights.

“It seems like your whole argument boils down to we get it from a third party, regardless of property interest, regardless of anything else,” he said. “But how does that fit with the original understanding of the Constitution and writs of assistance?”

Writs of assistance essentially functioned as subpoenas, the justice held.

“John Adams said one of the reasons for the war was the use by the government of third parties to obtain their snitches and snoops,” Gorsuch said. “Why isn’t this argument exactly what the framers were concerned about?”

Dreeben demurred, saying writs of assistance “allowed people acting under governmental power to enter any place they wanted to search for anything that they wanted.”

“Isn’t this exactly your argument here? That so long as a third party is involved; we can get whatever we want?” Gorsuch fired back.

Price from the Brennan Center said the ruling will come down to how broadly the justices rule.

“The game is going to be how the court treats Smith and Miller,” Price said. “Do they distinguish narrowly or recognize as they did in Jones that technology has evolved, meaning that old third doctrine may not automatically apply? Technology changes the game. This is different. The rules that we have developed in the physical world just won’t apply [in the same way] with new technology.”

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