SCOTUS: Warrant Needed for Cell-site Records

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Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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11 Responses

  1. Avatar Slade the Leveller says:

    Thomas, in a word-by-word analysis of the Fourth Amendment, states his preference for the ordinary meaning of “look over or through for the purpose of finding something”, and advocates applying it specifically to “persons, houses, papers and effects” in a very literal reading of the text.

    For Christ’s sake, we are rapidly moving to a paperless society in this 21st century A.D. Does that mean the 4th Amendment can only apply to tangible things going forward? It seems reasonable that people appearing before the court ought to be able to have judges with the ability to make rulings in keeping with the times.

    Thomas even goes so far as to repudiate the Katz decision, relying instead on Scalia’s denunciation of the same. It seems that our Justice Thomas wants to rely on stare decisis when it suits his needs, which it most certainly does not in this case.

    Odd bedfellows in this majority, to be sure, but it’s nice to get a decision that attempts to keep pace with the rapid changes technology is making in our personal lives.Report

    • Avatar Em Carpenter says:

      I try to keep my opinion out of these pieces, but I found the parts of the dissents you refer to laughably, stubbornly, puzzlingly obtuse. Almost arguing just for the sake of it- I mean, they cannot really think that, you know? I bet if I went back and read prior 4A cases I would find a lot of contradiction.Report

    • Avatar J_A says:

      The textualism of Thomas and the extreme originality of others threatens the Constitution they claim they want to protect.

      If the only correct way to understand the Constitution is through the world and concepts of the late XVIII century, sooner rather than later the Constitution will become obsolete. Judges cannot say “I can’t find cell phones, internet, airplanes, cars, or petroleum in the Constitution or the writings of the Founders and their contemporaries, so I can’t rule about those things. Do you have a case about horses and buggies?”Report

  2. Avatar Oscar Gordon says:

    I think the court have consistently been too lenient with regard to the government and data searches. I fail to see why the government can’t get a warrant for any data, GPS, credit card, etc. If they have a target, getting a warrant should be trivial.Report

  3. Avatar Aaron David says:

    I kinda get where the minority was going on this, kinda, but I think this is a step in the right direction.Report

  4. The various opinions are quite interesting:

    Thomas writes a dissent that says you don’t own your cell phone records, so the 4th doesn’t apply

    Gorsuch writes a concurrence (that he for some reason calls a dissent) that says you do own your cell phone records so the 4th applies directly.

    Alito writes a dissent in which his main concern is that getting a warrant will burden the police, because of course he does.Report

    • Avatar J_A says:

      Gorsuch writes a concurrence (that he for some reason calls a dissent) that says you do own your cell phone records so the 4th applies directly.

      I just read Gorsuch’s dissent.

      I think he has the best solution to all this mess. And I would bet a six pack of very good IPA that all four liberal judges would have voted for his opinion over Roberts.

      But he refused to vote for his own opinion based on a technicality. Probably a very important technicality, but a technicality nevertheless.

      He could have written a revolutionary opinion for the Court. Instead, he just wrote a law review article.Report

      • Avatar Michael Cain says:

        I think he has the best solution to all this mess. And I would bet a six pack of very good IPA that all four liberal judges would have voted for his opinion over Roberts.

        As I understand it, though, that’s not how the Court works internally. Senior-most justice (CJ at the top, then ordered by years on the Court) on the majority side gets to assign who writes the majority opinion. In this case, Roberts chose to write it himself; didn’t matter whether any of the other justices preferred Gorsuch’s argument — they lump it or they have to change sides. This is one of my least favorite things about how the Court operates.

        I try to follow in detail all the CO2 rulings. Roberts got burned in the first Massachusetts case, where he wanted it tossed on standing. Kennedy got to assign that one. (Roberts’s dissent was a cross between mean-spirited and a fifth-grader throwing a tantrum.) I note that since, Roberts has voted on the regulate-CO2 side every time, and the opinions have been much narrower with him in control.Report

        • Avatar J_A says:

          As I understand it, though, that’s not how the Court works internally. Senior-most justice (CJ at the top, then ordered by years on the Court) on the majority side gets to assign who writes the majority opinion

          You are right about how the process works. They discuss the case and vote, and the senior Justice in the majority assigns the opinion.

          What I meant is that Gorsuch is all in favor of the Fourth Ammendment protecting Carpenter, but, nevertless, he voted against Carpenter and for the Givernment.

          You see, Carpenter argued the Fourth protected his expectation of privacy, Gorsuch believes Carpenter had a property ownership in the cell tower records, an argument that was not made by Carpenter. Rather than present this argument to the Justices before the vote, and perhaps get a new 5-4 majority (Roberts would probably not have gone with Gorsuch), he votes against the result he thinks is correct, because, he argues, the process forces him to. He can’t vote for the correct argument, he says, because it was not presented to him. Instead he votes against the “wrong” argument, the expectation of privacy one.Report

  5. Avatar Road Scholar says:

    So, IANAL of course, but why would that stop me from weighing in? I see two issues at play here.

    First, is a property issue. To whit, is data about you, generated and held by a third party as a natural consequence of a business relationship with that party, in some sense your data? TBH, that strikes me as dubious. Just consider those adorable class pictures of your youngun. That’s indisputably data about your child but it’s the express property of the photographer under copyright law. On the other hand, there’s also the thing where a celebrity seems to have a property right in their image, at least sometimes, and your school photog would have to get your permission to use your kid’s photo in promotional materials. So… I dunno.

    The other issue is just a general expectation of privacy. Am I mistaken to think, as a layman, that the lines on that are sorta fuzzy as well? Also, HIPAA. So positive law can define things that way?

    I guess I sorta talked myself out of a brilliant comment here, but I can pretty well concur with Oscar here. Get a fishin’ warrant.Report

    • Avatar J_A says:

      That’s indisputably data about your child but it’s the express property of the photographer under copyright law.

      The argument -which Gorsuch makes in his dissent- is that cell phone data is closer to your bank records, which sit in the bank servers, but are considered your property, rather than pictures of you, which is not just data, but also the work product of the photographer, hence the copyright law applying here.

      Am I mistaken to think, as a layman, that the lines on that are sorta fuzzy as well?

      They are very, very, fuzzy, and the Roberts opinion makes them even fuzzier, which is the subject of the Kennedy dissentReport