The Carpenter Decision: SCOTUS rules against awl-encompassing gov't surveillance

Great Debates
1

No thread for this?

The Supreme Court handed down what was (at least in my mind) the most-awaited decision of the term, Carpenter v US.

The issue: without a warrant, the government was provided records from Timothy Carpenter’s cell phone provider, which included information as to which cell towers his phone was hitting minute-to-minute. This information was then used as the basis for argument at trial for a series of cross-state armed robberies; the government asked the jury to convict because, amongst much other evidence, Timothy was the guy because he was close to each and every armed robbery site at the time the robberies happened.

Carpenter asked the Supremes to revers, based on the claim that the government obtained those records in violation of his reasonable expectation of privacy, without a warrant. The government responded that Carpenter had no expectation of privacy in records held by a third party – he had already surrendered his privacy to the call phone provider, and can’t complain if they voluntarily hand over his records to someone else. (At least, he can’t complain about a Fourth Amendment violation).

The “third-party doctrine,” is (or was) well-established law, but the Court put a stake in its heart: they ruled that because the technology has changed so dramatically, and even more importantly because it will continue to change, a new rule is necessary to maintain the balance of privacy that the Fourth Amendment protects.

I’m not wild about this conclusion, but o the other hand, it’s not like the third-party doctrine is enshrined in the Constitution. It was created by judicial decision; it can be vitiated by judicial decision.

So while I think Justice Bricker would have ruled the other way, I acknowledge the bulk of the reasoning behind the majority’s view.

But for debate: part of the reasoning was that even if the current state of technology does not hand the government unbalanced surveillance power, near-term future advances surely will. That, said the majority, justifies making a new rule now.

With this, I don’t agree. But I’d be curious to hear opposing views.

2

Well all I’ll say is, you gotta monitor them awls. Someone could poke their eye out with those things if they aren’t careful.
Owls too.

3

This is very strange. I was reading a thread about this decision earlier today. But when I just went to find that thread so I could post a link to it here, I can’t see it.

4

Now, joking aside, an actual answer:

Bit of background : I live in or near Paris, France ; a city where you certainly can move about by car but I’ll laugh at you if you do. Our subway system is fantastic, our parking system is non-existent, y’all do the math. As with any subway system you gotta buy tickets to ride ; OR you could purchase a monthly pass that may or may not be a better bargain depending on how often you take the tube. In the past… I don’t even know, 10 years maybe ? the subway company replaced that monthly pass (which used to be a physical ticket) with a subscription that comes with an RFID card. With those passes you don’t even need to fiddle with the machines, you can just move through the turnstyles. The caveat is that, while individual tickets or the old monthly ones were anonymous, the RFID cards communicate with the turnstyles and are registered to your name and address ; meaning that the RATP now knows exactly where you’ve been, where you’re going, how often, etc…
Most people don’t even realize that. Me, I used to buy monthly passes. I now rely on piles upon piles of daily ones, even if they’re a bit more expensive.

This story was related only to let y’all know who you’re dealing with, where I’m coming from with this. I do not want to be part of your meta-data, I do not want my life statistics to be logged any more than they have to. I avoid social media, pay whatever I can in cash. I don’t have any particular paranoid tendency nor do I believe there’re grand conspiracies out there. I just don’t like the idea of being watched & logged at all times. I don’t like it when it’s the government doing it via CCTV, I like it even less when it’s a private company who’ll do god knows what with the data (Hi, Mark !).

With mobile phone technology that’s pretty much impossible to avoid ; and modern life has become really hard to live if you don’t have your phone with you at all times. It’s expected by employers, it’s practical with teams and friends, etc… and the cell towers will always be capable of triangulating my exact position because that’s how you get a signal in the first place. It’s not like I **choose **to broadcast my exact position on a second-by-second basis - that information is simply necessary for the proper function of that device, which is even more necessary that a car. The police already have devices that will spoof a cell phone tower for a given phone to do the triangulating by themselves, without even needing the involvement of a phone company (but, so far, I think they need a warrant before they can use those. I could be wrong). So I’m perfectly fine with the courts ruling that they can’t just strongarm private companies into giving that kind of information to them sight unseen. Warrants, probable cause, due process - those are all checks on the police’s power. They exist for a reason. They protect my ass.

ISTM that, going by the opposing rationale (which you, Bricker, seem to espouse, but do feel free to expound on your reasoning), the police would have the right to wiretap everyone all the time. After all, you voluntarily give away your speech for the phone company to transmit, and that speech is then just flung out there on radio waves which anybody can snatch with the right tech, therefore there’s no expectation of privacy there. By that same token one could argue that hey, if I’m on the street people can see me, ergo the police could just follow me around all the time and that’s perfectly fine 'cause I’m in public.

And yeah, um, fuck that, maybe ?

5

As an additional data point, I can’t not bring up the fantastic experiment performed by Janet Vertesi ; a sociologist who took the steps she had to in order for her pregnancy not to be tracked by Amazon et al for targeted ads. Just to see if it could be done, and how. Well, turns out it’s really fucking hard to escape Big Data and the way to do it’ll make you pop lots of red flags and you’ll likely wind up on gvt watch lists (not to mention make you look like a gigantic weirdo to your family and colleagues) - because those steps are exactly the same criminals take to hide their nefarious acts.
So you’ve got the choice of either giving away *all *your private info to commercial outlets (who, by third party rule, would then freely give them to the police ; and you folks have no idea just how much info on yourself simply having a Facebook or Instagram wall gives away to people who algorithm for a living) or not giving it away and being watched by the police for that. Is there a way where you’re not under surveillance at all ? Well, there wasn’t until that SCOTUS ruling.

6

Hmmm. So, technical advances may change the environment to such an extent that even foundational principles may require modification. Kinda like “everybody can have a gun” made better sense when they didn’t fire a hundred rounds a minute. Just sayin, is all. TG, IANAL…

7

Can I ask, as an aside, what was the new rule the Court came up with?

8

I’m not a lawyer, but it sounds to me like they got this one right. The privacy rights of the citizens are more valued than the government’s ability to snoop. Or, as Lemmy put it: “Just kuz you’ve got the power, that don’t mean you got the right.”
I say score one for life, liberty and the pursuit of happiness.

9

It seems to me that the government already has unbalanced surveillance power. In NYC, there is no longer an option to pay tolls with cash – either you have EZPass or they read your license plate and send you a bill. It may not be possible to get around NYC without the MTA knowing where you’re going – maybe one of the free East River bridges, up through Harlem, over the Madison Avenue bridge to the Bronx? Anyway, it’s not easy, that’s for sure.

So, at least in the NYC area, the government can track your movement in your car as you cross most bridges and all tunnels. I would sure want them to get a warrant before being able to track my car full time.

In another thread, someone mentioned that the government should be allowed to see third party data for that data that you hand to third parties that anyone could look up and see. Once they have to get phone companies and search engines to hand over information that they wouldn’t hand over to some ex-boyfriend, they should get a warrant. I think that’s reasonable.

Is it that difficult to get a warrant? (asking for real, I don’t know)

Bricker, I’m curious about your reasoning here. Is it a conservative view towards stare decisis? A law-and-order approach? It seems like you’re a bit on the fence, and it seems that a tie should go to more privacy, not less.

I’m a little surprised at the close call by the court. I know that Alito would do anything for the police, but I would have thought a few more conservatives would respect 4th Amendment rights. Not to go all Originalist (when it suits me), but I have to imagine the Founders would be horrified at the idea of the government being able to track all your movement without any judicial oversight.

10

It seems like the court is consistently against various types of electronic surveillance and other techniques without a warrant. Which is a fine trend by me; if the government needs those records (or other techniques that have been pulled back) they can take the time to get a warrant.

11

If you awl don’t agree with the plane-ly evident fact that we’re jointly discussing the Carpenter decision on a message Board, then I guess the jig is up.

12

It took me until this post to understand why you put awl in the subject. :o

That said, go to your room!

13

This is a problem which could, at least, be addressed by the free market: A competing phone company could advertise that they won’t share your information short of a warrant, or even delete it all quickly enough that it couldn’t be gotten with a warrant, and then put that in their contracts. It probably hasn’t been addressed by the free market yet, because not enough customers know or care about the issue. If it’s people just not knowing, this court case will probably make a difference, in letting people know. If it’s people not caring, that’s a different story.

14

The police CAN still follow you around all the time. And it’s perfectly fine because you’re in public. CJ Roberts specifically contrasted that kind of permissible surveillance with that electronic tracking that is “…detailed, encyclopedic, and effortlessly compiled.”

So, yeah, I do argue that. :slight_smile: That’s sort of the basis of my argument: the rule seems to be that government had to work hard, devote lots of resources, if they wanted warrantless surveillance. Now that technology gives them an easier way of accomplishing that goal, the judiciary seems to want to keep the scales balanced.

For example, the opinion says they’re not setting forth an extensive rule change: “We do not . . . call into question conventional surveillance techniques and tools, such as security cameras.” But why? Someone could argue that cameras on every corner lamppost (a la Baltimore) are a technology that gives law enforcement an easier way to watch the streets than a police officer on every corner. There was a time when those cameras didn’t exist. Why was it acceptable for law enforcement to get that edge? What if we add hyperfast facial recognition? Will that become a Fourth Amendment violation?

The rule has been that you have no expectation of privacy for things done in public. In 2010, I inveighed against the adoption of the “mosaic theory” of privavcy: read the thread for details, but in short, it’s that even though an individual movement may be public, the sum total of the movements is not – that there is a mosaic aspect of the Fourth Amendment which means that an individual piece of information may have no expectation of privacy, and another also no expectation of privacy, and still another no expectation of privacy… but when they’re all put together, there is suddenly an expectation of privacy.

That decision ended up at the Supreme Court too, and was resolved by a trespass to chattels theory. Several commentators at the time predicted that the mosaic theory wasn’t dead, and we’d see it in a new case.

Carpenter doesn’t explicitly adopt it. But it hints strongly at sympathy for the idea.

15

I still don’t get it. But it’s early, and I haven’t had my morning caffeine.

By the way, I love your chocolate.

I’ll add my un-law-educated voice to those who think this decision is a good thing. I made a personal decision at some point not to try to keep casual information about myself private, on the understanding that I am too boring for anyone nefarious to care about, and the hope that my data can pass by in the crowd without much notice. Nevertheless, although I don’t take the kinds of steps that Kobal2 does to maintain privacy, I don’t like the current situation much. I just don’t have the fire to fight it. So I appreciate the Supremes taking up the cudgel to some degree in a little defense of a little privacy.

16

I was being punny. An awl is a carpenter’s tool. So is a plane. Carpenters make various joints to join wood, which often comes in Boards. A jig is a template guide for drilling holes in wood.

:slight_smile:

17

Well, I started a thread two hours before you and nobody posted there, including you. :slight_smile:

I think we are in agreement about this. I certainly like the result, but I think it stands on very shaky legal ground. It seems to rest solely on the subjective opinion of a judge: this should be private; this should not. I think Gorsuch has the better view, however it is not without its flaws.

For example, are the dissenters suggesting that if I allow a third party to care for my items in a bailor/bailee situation, and they disclose the item then it could be suppressed because they were not authorized to turn over the item? What if unbeknownst to the bailee, the package contains cocaine? Can he or she still not disclose it?

If so, that would turn standing law on its head, even though it superficially makes sense. But then again, the exclusionary rule is meant to deter police misconduct, not private misconduct.

Further, it would seem that if I have (under the majority opinion) some REP in stuff held by the third party, then that hypothetical satchel of cocaine should be equally respected. Isn’t it reasonable to believe that if I pay someone money to hold onto my bag that they won’t search through it for illegal items? That they will just hold it until I pick it up? Why is that more unreasonable that knowing that the government can get my cell phone data when I know that the company stores it and there is a federal law that can grant the government access?

This area of law was jumbled before, and the third party doctrine wasn’t perfect, but it at least had the benefit of being a bright line rule. After this opinion, it is a mess. So the third party doctrine is still good law, except when it is not?

ETA: Further, I was convinced that Jones made clear that Katz was in addition to the traditional trespassory tests. The majority dances around this, but seems to imply in some places that it is Katz only.

18

The interesting thing about this decision was that it was 5-4 but with an unusual distribution of justices – it was Roberts joined by all the liberal justices, with all the conservatives dissenting. That alone makes it rather remarkable.

I agree with the “future advances in technology” reasoning, simply because it’s true: we live in a world where technological advances have the potential to seriously infringe on privacy, where databases of all kinds containing an astounding amount of information about every little detail of our lives are proliferating and, in some cases, becoming interconnected. However, Wikipedia notes in describing this ruling that
The ruling was very narrow and did not otherwise change the third-party doctrine related to other business records that might incidentally reveal location information, nor overruled prior decisions concerning conventional surveillance techniques and tools such as security cameras.
The “third-party doctrine” is one of the things that undermines personal privacy in the US compared to most other first-world democracies, so maybe this ruling isn’t as big an advance as one might think.

19

The “advancing technology” argument has not been persuasive for other basic rights. Do we say that free speech, for example, doesn’t apply to television or the internet because these technologies have allowed too many people too much speech? Or (and please lets not go there for too much) does the Second Amendment only apply to flintlocks?

I agree with the outcome and I think the cleaner was is Gorsuch’s way: We have a property interest in our cell phone data, our banking data, and the phone numbers we dial from a land line. The records are compiled as a result of our patronage and our money is used to pay for them. They are used, in part, by the customer.

These businesses also have a property interest in them. If the business voluntarily turns them over, then no exclusionary rule, but an action in tort. However, the government needs a warrant to search them. I would have overruled the entire third party doctrine and based this action on property law.

20

Apologies. I searched.

Evidently very poorly. :smack: