Privacy advocates are cheering the outcome of Carpenter v. United States, in which the Supreme Court found that law enforcement and U.S. government agencies must obtain a warrant before requesting an individual's cell-site location information (CSLI). However, in their 5-4 ruling, the justices explained,
This decision is narrow. It does not express a view on matters not before the Court; does not disturb the application of Smith and Miller or call into question conventional surveillance techniques and tools, such as security cameras; does not address other business records that might incidentally reveal location information; and does not consider other collection techniques involving foreign affairs or national security.
In his dissent Justice Gorsuch objected to the arbitrary nature of the ruling, which does not require a warrant for less than six days of records and does not cover "tower dumps", a download of all devices connected to a particular cell site - in real time or over a specified period. The ruling also exempts the private sale of CSLI to or among businesses, which may in turn hand over data to government agencies.
His opinion hardly deserves to be called "dissent"; Gorsuch made strong arguments in favor of privacy, directly attacking the 1979 Third-Party Doctrine a legal precedent under which, "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."
Even taken on its own terms, Katz has never been sufficiently justified. In fact, we still don’t even know what its “reasonable expectation of privacy” test is. Is it supposed to pose an empirical question (what privacy expectations do people actually have) or a normative one (what expectations should they have)? Either way brings problems.
There is another way. From the founding until the 1960s, the right to assert a Fourth Amendment claim didn’t depend on your ability to appeal to a judge’s personal sensibilities about the “reasonableness” of your expectations or privacy. It was tied to the law.
Despite the ruling, it is incredibly easy for law enforcement to obtain warrants. The U.S. FISA Court approves 99.97% of all warrant requests, and The Salt Lake Tribune found judges spend mere seconds reviewing details of requests. Today that includes digital "e-warrants", which allow law enforcement agencies to request warrants without standing before a judge.
This is how e-warrants work: Police officers write a description of their credentials and why they need access to whatever they want to search. Then they submit it digitally to the Utah Criminal Justice Information System. An on-call judge receives a text or email alert, and that can come at any hour of the day. The judge then reviews the warrant and makes a critical decision: Is there probable cause to believe a crime has been committed? If so, the judge hits a button, granting permission for the officer to seek the evidence.
Companies like CloudGavel (an "Amazon technology partner") provide e-warrant services, making it easy for law enforcement to adopt this technology with little state or municipal oversight. One might argue e-warrants simply make government more efficient, but warrants should not be efficient; they are supposed to protect our liberties through careful deliberation. The "slow" nature of the justice system is designed to prevent abuse of citizen rights.
The Carpenter v. United States decision may prove useful in setting precedent for further cases, but do not mistake a razor-thin step forward for outright victory. Those who wish to maintain their personal privacy should consider their CSLI up for grabs in almost every circumstance.
Published June 25, 2018 by Ethan F Grant