It’s refreshing to see that (at least half of) the U.S. Supreme Court is coming around and providing dentures to the Fourth Amendment after knocking out its teeth over the past five decades.
Last week, the court ruled 5-4 in Carpenter v. United States that a warrant is needed for government agents to obtain cell-site location information.
In the case, federal prosecutors were granted court orders to obtain those records on Timothy Carpenter, a suspect in a bank robbery. Prosecutors then used those records — following a failed motion to suppress evidence — to show Carpenter’s cellphone was near four robbery locations at the same time the banks were being robbed.
The Sixth Circuit Court of Appeals agreed with the district court that Carpenter had no expectation of privacy in regards to his cell location data because he had shared the information with his wireless carriers.
But when the case hit the high court, a narrow majority declined “to grant the state unrestricted access to a wireless carrier’s database of physical location information.
“In light of the deeply revealing nature of CSLI, its depth, breadth and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection,” Chief Justice John Roberts wrote in the majority opinion, joined by Justices Stephen Breyer Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsberg.
As we’ve mentioned before, the notorious RBG has been a defender — sometimes the lone voice in the wilderness — of the Fourth Amendment.
However, Roberts notes that the ruling did not disallow the collection of such records without a warrant in cases of imminent danger.
Justice Anthony Kennedy, writing the dissent, argued that Carpenter had no ownership of the records, as they were owned and controlled by a third party and a subpoena should suffice.
Justices Clarence Thomas and Samuel Alito also dissented, both agreeing that the majority decision expands the Fourth Amendment “beyond its original scope.”
Although he dissented, Justice Neil Gorsuch takes the court to task for its botched dental work in the past.
Gorsuch points out decisions in the ’60s and ’70s that the standard of “reasonable expectation of privacy” and declared Fourth Amendment protections don’t extend to information shared with third parties.
“By these steps, the Court came to conclude, the Constitution does nothing to limit investigators from searching records you’ve entrusted to your bank, accountant and maybe even your doctor,” he writes. “What’s left of the Fourth Amendment?”
Citing how we keep internet records — and how internet companies keep records on us — Gorsuch writes, “Even our most private documents … now reside on third-party servers. (Previous decisions) teach that the police can review all of this material, on the theory that no one reasonably expects any of it will be kept private. But no one believes that, if they ever did.”
Carpenter, according to Gorsuch, argued his position on flawed case law when he could have based it on the law of property, using a plain reading of the Fourth Amendment; and laments it’s the second time this term “that individuals have forfeited Fourth Amendment arguments based on positive law by failing to preserve them.”
“Yet the arguments have gone unmade, leaving courts” to rely on the “reasonable expectations” argument,” he writes. “These omissions do not serve the development of a sound, fully protective Fourth Amendment jurisprudence.”
We agree with Gorsuch that digital information, although kept by a third party, could qualify as “papers or effects,” which are (in theory) protected by the Fourth Amendment from search or seizure without a warrant.
A combination of the war on drugs and post-9/11 fearmongering have led to the current snaggle-toothed state of the Fourth Amendment.
Government agents, remember that you take an oath to uphold and abide by the U.S. Constitution.
You want information? Come back with a warrant.