By Gordon Hull
Santa Claus knows when you’ve been sleeping, knows when you’re awake, and knows if you’ve been bad or good. Your phone knows all of that too, because it knows exactly where you are. It then sends all that information to your carrier, which keeps it in its logs for five years. Stay out late drinking last night? Your phone knows. Had an affair a couple of years ago? Your phone knows that, too. Get up early for a workout and then work? Yep, your phone knows that too. Up until today, it was pretty easy for the police to know it as well, as they were able to subpoena your phone’s geolocation records from your phone carrier. Under the “third party doctrine” as articulated primarily in Smith v. Maryland (1978), you lose any expectation of privacy over information that you "voluntarily" hand over to someone else – this this case, your phone carrier. In a 5-4 opinion today, Chief Justice Roberts and the four liberals on the Court refused to apply third party doctrine to phone location data. Justice Roberts writes:
“We decline to extend Smith and Miller [a case where the government subpoenaed bank records- GH] to cover these novel circumstances. 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. The location information obtained from Carpenter’s wireless carriers was the product of a search”
As Roberts noted at the start of the opinion (which, btw, is a model of legal writing), the Fourth Amendment was originally motivated in substantial part by concern over generalized warrants. His conclusion is therefore not a surprise. Indeed, tapping phone records pretty much achieves everything a general warrant hoped for; as Roberts notes, “a cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales. Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user” (internal citations omitted). And of course it does so with absolutely zero police effort. When the GDR Stasi wanted to track your every move, they at least had to assign an officer to do it. Here, the data is collected automatically and without human intervention.
“[It] fails to contend with the seismic shifts in digital technology that made possible the tracking of not only Carpenter’s [the suspect’s] location [the police obtained over 100 days of location data] but also everyone else’s, not for a short period but for years and years. Sprint Corporation and its competitors are not your typical witnesses. Unlike the nosy neighbor who keeps an eye on comings and goings, they are ever alert, and their memory is nearly infallible. 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”
Roberts swats away efforts to reduce the magnitude of the surveillance involved: “this case is not about “using a phone” or a person’s movement at a particular time. It is about a detailed chronicle of a person’s physical presence compiled every day, every moment, over several years.” Roberts then applies warrant requirements to the search. Although he concludes by carefully limiting the opinion’s reach, and implying there might be exceptions, it’s very hard not to view this as a major victory for privacy.
The dissent is splintered into four separate opinions; the main thing unifying them is their desire for a different result in the case. Notably, Gorsuch declined to apply the theory of property that he seemed to be developing in oral argument. The majority opinion is also in line with Justice Kagan’s apparent invitation at the end of U.S. v. Jones (which ruled against the police installation of a GPS tracking device on a suspect’s car; the decision was however limited because it relied on the officers having entered Jones’ property to install the device) to provide a more general Fourth Amendment case to consider.
What strikes me most, however, is the implied comparison to a general warrant. In a world where your vacuum cleaner can transmit a map of your house to the cloud, technology has enabled the modern equivalent of generalized warrants, and prior to today, police access to that data did not require getting a specific warrant. Today’s decision draws a line in the sand. So you can rest a little easier tonight: the police now need a warrant to know where you’re sleeping.
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