WASHINGTON (CN) – With Chief Justice John Roberts leading the majority, the Supreme Court ruled 5-4 Friday that Americans have reasonable privacy expectations in their cellphone location data.
Though it is undeniable that a cellphone user reveals his location to his wireless carrier, Roberts said the issue that is less clear is whether the same third-party doctrine that applies to telephone numbers and bank records “extends to the qualitatively different category of cell-site records.”
It was in the case Smith v. Maryland that the Supreme Court held that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”
Roberts emphasized Friday, however, that “when Smith was decided in 1979, few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements.”
Other landmark Fourth Amendment cases that Roberts found relevant were the 1976 tax-evasion case U.S. v. Miller and the 2012 GPS ruling in U.S. v. Jones.
Roberts emphasized that, “much like GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic, and effortlessly compiled.”
“We decline to extend Smith and Miller to cover these novel circumstances,” the 23-page opinion states. “Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI [cell-site location information].”
All four of the dissenting justices penned his own opinion, but Roberts said they missed the mark.
“This case is not about ‘using a phone’ or a person’s movement at a particular time,” Roberts wrote. “It is about a detailed chronicle of a person’s physical presence compiled every day, every moment, over several years. Such a chronicle implicates privacy concerns far beyond those considered in Smith and Miller.”
In the underlying case, prosecutors obtained CLSI from the phone of Timothy Carpenter after pegging him as a member of a ring that had robbed a series of Detroit-area Radio Shacks and T-Mobile stores in 2011. Rather than getting a warrant for the data, however, the government obtained a court order under the Stored Communications Act.
At Carpenter’s trial, an FBI agent testified that the comprehensive data — the government had obtained 12,898 location points cataloging Carpenter’s movements — placed Carpenter’s phone near four of the charged robberies.
Convicted on all but one firearm count, Carpenter was sentenced to 100 years in prison. The Sixth Circuit rejected Carpenter’s Fourth Amendment claim on appeal, but Roberts wrote Friday that the government was required to get a warrant supported by probable cause before acquiring his CLSI.
“If the third-party doctrine does not apply to the ‘modern-day equivalents of an individual’s own “papers” or “effects,”‘ then the clear implication is that the documents should receive full Fourth Amendment protection,” Roberts wrote. “We simply think that such protection should extend as well to a detailed log of a person’s movements over several years.”
The ruling goes on to emphasize that CLSI data has become even more accurate in the years since it was highlighted at Carpenter’s trial.
“As the number of cell sites has proliferated, the geographic area covered by each cell sector has shrunk, particularly in urban areas,” Roberts wrote. “In addition, with new technology measuring the time and angle of signals hitting their towers, wireless carriers already have the capability to pinpoint a phone’s location within 50 meters.
“Accordingly, when the government accessed CSLI from the wireless carriers, it invaded Carpenter’s reasonable expectation of privacy in the whole of his physical movements.”
Roberts also distinguished cellular carriers from traditional witnesses that the government might call upon for evidence.
“Unlike the nosy neighbor who keeps an eye on comings and goings, they are ever alert, and their memory is nearly infallible,” the opinion states. “There is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today. The government thus is not asking for a straightforward application of the third-party doctrine, but instead a significant extension of it to a distinct category of information.”
Another point that Roberts emphasizes is the narrowness of Friday’s holding.
“As Justice Frankfurter noted when considering new innovations in airplanes and radios,” Roberts wrote, “the court must tread carefully in such cases, to ensure that we do not ‘embarrass the future.’”
In the first of the dissents Friday, Justice Anthony Kennedy warned that the rule Friday’s holding “seems to formulate puts needed, reasonable, accepted, lawful, and congressionally authorized criminal investigations at serious risk in serious cases, often when law enforcement seeks to prevent the threat of violent crimes.”
“And it places undue restrictions on the lawful and necessary enforcement powers exercised not only by the federal government, but also by law enforcement in every state and locality throughout the nation,” Kennedy added.
Joined by Justices Clarence Thomas and Samuel Alito, Kennedy called it illogical for the majority to find that the date span of the subpoena has some bearing on its constitutionality.
“It is true that the Cyber Age has vast potential both to expand and restrict individual freedoms in dimensions not contemplated in earlier times,” the 23-page dissent states. “For the reasons that follow, however, there is simply no basis here for concluding that the government interfered with information that the cell phone customer, either from a legal or commonsense standpoint, should have thought the law would deem owned or controlled by him.”
Justice Neil Gorsuch dissented alone as well, having not joined any of the earlier opinions.