Supreme Court hears arguments in historic cellphone tracking case

Daily News Article — Posted on December 4, 2017

(by Associated Press at Chicago Sun-Times) – Supreme Court justices on Wednesday heard oral arguments in what some are calling the most important digital privacy case in decades, involving whether it’s constitutional for authorities to seize and search a person’s cellphone records that reveal a person’s location and movements without a warrant.

The justices heard a case in which the government obtained 127 days of cellphone tower information, without a search warrant, that allowed it to place a criminal suspect in the vicinity of robberies. [Timothy Carpenter appealed the case after the Sixth Circuit Court of Appeals upheld a lower court’s decision to affirm his conviction and 116-year sentence.] But underlying the 80-minute argument was unease about how easy it has become to track so many aspects of American lives — and the expectation that new advances would only make things easier.

“Most Americans, I think, still want to avoid Big Brother,” Justice Sonia Sotomayor said, adding that Americans take their phones with them to dressing rooms, bathrooms and bed.

Chief Justice John Roberts, reprising a line from an earlier opinion, noted that having a cellphone these days is a matter of necessity, not choice.

With those devices, Justice Elena Kagan said, authorities have the ability to do “24/7 tracking.” And the accuracy of cell tower location information also has improved from a vicinity of 10 football fields to half the size of the courtroom they were in, she said.

Those justices appeared to be among a majority of the court that could extend the Constitution’s Fourth Amendment protection against unreasonable searches to apply to police collection of cellphone tower information that has become an important tool in criminal investigations.

The cell tower records that investigators got without a warrant bolstered their case against Timothy Carpenter in a string of armed robberies of Radio Shack and T-Mobile stores in Michigan and Ohio.

Investigators obtained the cell tower records with a court order that requires a lower standard than the “probable cause” needed to obtain a warrant. “Probable cause” requires strong evidence that a person has committed a crime.

The judge at Carpenter’s trial refused to suppress the records, finding no warrant was needed, and a federal appeals court agreed. The Trump administration said the lower court decisions should be upheld.

Arguing for Carpenter before the Supreme Court, ACLU lawyer Nathan Freed Wessler said a warrant would provide protection against unjustified government snooping.

On the other side, Justices Samuel Alito and Anthony Kennedy seemed most receptive to the administration’s argument that privacy rights do not come into play when the government gets records from telecommunications providers and other companies that keep records of their transactions with customers.

Alito said most people would not be shocked to learn that cellphone towers can help locate them. “I mean, people know. There were all these commercials, ‘Can you hear me now? Our company has lots of towers everywhere.’ What do they think that’s about?” Alito asked, referencing a onetime Verizon Wireless ad campaign.

Justice Department lawyer Michael Dreeben said, “The technology here is new, but the legal principles the court has articulated under the Fourth Amendment are not.”

The administration relied in part on a 1979 Supreme Court decision that treated phone records differently than the conversation in a phone call, for which a warrant generally is required.

The court said then that people had no expectation of privacy in the records of calls made and kept by the phone company. That case involved a single home telephone.

The Supreme Court in recent years has acknowledged technology’s effects on privacy. In 2014, the court held unanimously that police must generally get a warrant to search the cellphones of people they arrest. Other items people carry with them may be looked at without a warrant, after an arrest.

Courts around the country have wrestled with the issue. The most relevant Supreme Court case is nearly 40 years old, before the digital age, and the law on which prosecutors relied to obtain an order for the records dates from 1986, when few people had cellphones.

Dreeben said federal agents obtained the order before examining cellphone location records after “a bullet was fired through the window of a federal judge in Florida.”

The court has several options if it sides with Carpenter. It could declare the need for a warrant any time police want cell tower records. Or it could say a warrant is needed only when seeking records over a period of time. The ACLU suggested a warrant for anything more than a day’s worth of records.

The justices also might say that obtaining the records is a search under the Fourth Amendment, but a reasonable one because a judge signed off on it.

Even if Carpenter wins at the Supreme Court, it may not matter to his conviction or 116-year sentence.

“Is any of this going to do any good for Mr. Carpenter?” Alito asked.

From an Associated Press report. Reprinted here for educational purposes only. May not be reproduced on other websites without permission from Chicago Sun-Times.

Background

Approximately 7,500 cases are sent to the U.S. Supreme Court each year. Out of these, only 80 to 100 are actually heard by the Supreme Court. When a case comes to the Supreme Court, several things happen. First, the Justices get together to decide if a case is worthy of being brought before the Court. In other words, does the case really involve Constitutional or federal law? Secondly, a Supreme Court ruling can affect the outcome of hundreds or even thousands of cases in lower courts around the country. Therefore, the Court tries to use this enormous power only when a case presents a pressing constitutional issue.

EXPLANATION OF PROCEDURE FOR ORAL ARGUMENTS IN THE SUPREME COURT:
(from supremecourt.gov/visiting/visitorsguidetooralargument.aspx)

A case selected for argument usually involves interpretations of the U. S. Constitution or federal law. At least four Justices have selected the case as being of such importance that the Supreme Court must resolve the legal issues.
An attorney for each side of a case will have an opportunity to make a presentation to the Court and answer questions posed by the Justices. Prior to the argument each side has submitted a legal brief – a written legal argument outlining each party’s points of law. The Justices have read these briefs prior to argument and are thoroughly familiar with the case, its facts, and the legal positions that each party is advocating.
Beginning the first Monday in October, the Court generally hears two one-hour arguments a day, at 10 a.m. and 11 a.m., with occasional afternoon sessions scheduled as necessary. Arguments are held on Mondays, Tuesdays, and Wednesdays in two-week intervals through late April (with longer breaks during December and February). The argument calendars are posted on the Court’s Website under the “Oral Arguments” link. In the recesses between argument sessions, the Justices are busy writing opinions, deciding which cases to hear in the future, and reading the briefs for the next argument session. They grant review in approximately 100 of the more than 10,000 petitions filed with the Court each term. No one knows exactly when a decision will be handed down by the Court in an argued case, nor is there a set time period in which the Justices must reach a decision. However, all cases argued during a term of Court are decided before the summer recess begins, usually by the end of June.
During an argument week, the Justices meet in a private conference, closed even to staff, to discuss the cases and to take a preliminary vote on each case. If the Chief Justice is in the majority on a case decision, he decides who will write the opinion. He may decide to write it himself or he may assign that duty to any other Justice in the majority. If the Chief Justice is in the minority, the Justice in the majority who has the most seniority assumes the assignment duty.