Divided Supreme Court Says Taking Cell Phone Records Is Unconstitutional

FILE - In this Feb. 17, 2016, file photo an iPhone is seen in Washington. The Supreme Court is hearing a case on Nov. 29, 2017, is taking up a case about privacy rights that could limit the government’s ability to track Americans’ movements in the digital age. The justices …
AP Photo/Carolyn Kaster, File
Washington, DC

WASHINGTON, DC – A divided Supreme Court ruled 5-4 on Friday that the Constitution does not permit the government to get cell phone records from service providers without a search warrant. The 114-page decision was comprised mostly of dissents from conservative justices criticizing the Court majority for ignoring the original meaning of the Fourth Amendment.

The Fourth Amendment to the Constitution provides “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

“This case presents the question whether the Government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements,” Chief Justice John Roberts wrote for the Court in a decision joined by the four liberal justices.

“There are 396 million cell phone service accounts in the United States—for a Nation of 326 million people. Cell phones perform their wide and growing variety of functions by connecting to a set of radio antennas called ‘cell sites,’” Roberts continued. “Although cell sites are usually mounted on a tower, they can also be found on light posts, flagpoles, church steeples, or the sides of buildings. Cell sites typically have several directional antennas that divide the covered area into sectors.”

“Each time the phone connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI),” he explained.

Federal agents sought CSLI information for individuals apprehended in a series of crimes to identify other people involved in those crimes. Prosecutors obtained “court orders under the Stored Communications Act to obtain cell phone records for petitioner Timothy Carpenter and several other suspects,” Roberts continued, which “permits the Government to compel the disclosure of certain telecommunications records when it offers specific and articulable facts showing that there are reasonable grounds to believe that the records sought are relevant and material to an ongoing criminal investigation.”

Carpenter was convicted of multiple crimes and sentenced to more than 100 years in prison.

The Supreme Court in its 1967 Katz decision “established that the Fourth Amendment protects people, not places, and expanded our conception of the Amendment to protect certain expectations of privacy as well,” wrote the chief justice, continuing:

When an individual seeks to preserve something as private, and his expectation of privacy is one that society is prepared to recognize as reasonable, we have held that official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause.

“As technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes, this Court has sought to assure preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted,” he added.

“We have previously held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties,” Roberts continued. “As a result, the Government is typically free to obtain such information from the recipient without triggering Fourth Amendment protections.”

“The question we confront today is how to apply the Fourth Amendment to a new phenomenon: the ability to chronicle a person’s past movements through the record of his cell phone signals,” explained the Court.

“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,” ruled the majority, continuing:

Whether the Government employs its own surveillance technology … 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.

“Our decision today is a narrow one,” Roberts emphasized, such as whether this rule applies to “conventional surveillance techniques and tools, such as security cameras,” or “collection techniques involving foreign affairs or national security.”

All four dissenting justices wrote opinions, which is extremely unusual in Supreme Court decisions.

“The new rule the Court seems to formulate puts needed, reasonable, accepted, lawful, and congressionally authorized criminal investigations at serious risk in serious cases, often when law enforcement seeks to prevent the threat of violent crimes,” wrote Justice Anthony Kennedy in a dissent that was joined by Justices Clarence Thomas and Samuel Alito. “The Court has twice held that individuals have no Fourth Amendment interests in business records which are possessed, owned, and controlled by a third party.”

“This case should not turn on ‘whether’ a search oc­curred. It should turn, instead, on whose property was searched,” Thomas began in his dissent. He explained that Carpenter “did not create the records, he does not maintain them, he cannot control them, and he cannot destroy them. Neither the terms of his contracts nor any provision of law makes the records his. The records belong to MetroPCS and Sprint.”

“The more fundamental problem with the Court’s opin­ion, however, is its use of the ‘reasonable expectation of privacy’ test. … [This] Katz test has no basis in the text or history of the Fourth Amendment,” he reasoned. “And, it invites courts to make judgments about policy, not law. Until we confront the problems with this test, Katz will continue to distort Fourth Amendment jurisprudence.”

“Moreover, the Katz test invokes the concept of reasonableness in a way that would be foreign to the ratifiers of the Fourth Amendment,” Thomas added. “Although the Court today maintains that its decision is based on ‘Founding-era understandings,’ the Founders would be puzzled by the Court’s conclusion as well as its reasoning.”

“I share the Court’s concern about the effect of new technology on personal privacy, but I fear that today’s decision will do far more harm than good,” wrote Alito in his dissent, which Thomas also joined. “The Court’s reasoning fractures two fundamental pillars of Fourth Amendment law, and in doing so, it guarantees a blizzard of litigation while threatening many legitimate and valuable investigative practices upon which law enforcement has rightfully come to rely.”

“First, the Court ignores the basic distinction between an actual search (dispatching law enforcement officers to enter private premises and root through private papers and effects) and an order merely requiring a party to look through its own records and produce specified documents,” Alito continued. “Second, the Court allows a defendant to object to the search of a third party’s property. This also is revolutionary.”

“In the late 1960s this Court suggested for the first time that a search triggering the Fourth Amendment occurs when the government violates an ‘expectation of privacy’ that ‘society is prepared to recognize as reasonable,’ wrote Justice Neil Gorsuch in a separate dissent, quoting Katz. He added:

Then, in a pair of decisions in the 1970s applying the Katz test, the Court held that a reasonable expectation of privacy doesn’t attach 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.

“Litigants have had fair notice” from two recent Supreme Court cases “that arguments like these may vindicate Fourth Amendment interests even where Katz arguments do not,” Gorsuch added. “Yet the arguments have gone unmade, leaving courts to the usual Katz hand-waving. These omissions do not serve the development of a sound or fully protective Fourth Amendment jurisprudence.”

The case is Carpenter v. United States, No. 16-402, in the Supreme Court of the United States.

Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.

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