The Supreme Court’s Cell-Phone-Tracking Case Has High Stakes

A second wiretapping revolution? Photo: Drew Angerer/Getty Images

In 2011, the FBI was investigating a series of armed robberies at Radio Shack and T-Mobile stores in and around Detroit. The FBI agents suspected Timothy Carpenter of working as a getaway driver for the robbers. They sought location data for Carpenter’s cell phone, which showed that Carpenter was near each of the robberies when they were happening. Carpenter argued in court that tracking his location using his cell phone was unconstitutional. The government pushed back with a bold legal claim. It argued that it can use cell phones to track the location of anyone it wants at any time, without violating the Constitution.

The Sixth Circuit Court of Appeals agreed with the government. It concluded that the Fourth Amendment’s warrant requirement did not apply to cell-phone tracking. Because Carpenter has no privacy or property rights in the location data that his phone transmits, and because the data does not reveal the contents of Carpenter’s phone calls, the government can obtain it without a warrant. Out of options, Carpenter filed a petition at the Supreme Court.

On November 29, the Supreme Court will hear the case of Carpenter v. United States. Court watchers have struggled to predict how the Court will rule. Government-surveillance cases rarely split along partisan lines, and the case sits at the intersection of several conflicting precedents. Justice Samuel Alito, a potential swing vote, has expressed serious concerns about warrantless location tracking but tends to favor law enforcement in the majority of cases. Justice Neil Gorsuch, another potential deciding vote, is new to the Court and his position is inherently difficult to forecast.

What is clear to legal analysts and Court observers is that Carpenter is a hugely important surveillance case, one of the biggest of the past 40 years. And, its implications for citizens’ privacy go beyond just cell-phone tracking. The Carpenter case has received some media attention, but unless you are a surveillance law expert, you may not be aware of the enormous potential impact of the Court’s decision. It is no exaggeration to say that it could determine the future of our privacy in the internet and cell-phone age.

Why is this case so important?

First, it may determine whether any of our digital information — emails, Google searches, contact lists, etc. — receives constitutional protection against government surveillance. Normally, the Fourth Amendment would require the government to have probable cause and a search warrant before examining our private data. But there are exceptions to this general rule. One exception is known as the “third party doctrine,” which dictates that personal information exposed to a “third party” like a phone company employee or a bank teller is no longer protected by the Fourth Amendment.

This doctrine was controversial in the pre-internet era, when it eliminated Fourth Amendment protection for things like bank records and dialed telephone numbers. The Supreme Court has not directly applied it in a case it since 1979. It is an open question today whether the third-party doctrine still operates. The stakes are also now much higher. The variety and amount of personal electronic data have increased exponentially over the last few decades. Almost every form of electronic information, from our emails to our Google searches to our contact lists to the websites we visit, is exposed to third parties. So if the Supreme Court affirms the third-party doctrine in the Carpenter case, all of this information may be unprotected by the Fourth Amendment. In other words, the Carpenter case is about a lot more than just cell phones. It is about whether the government can gather personal and often intimate details about any or every citizen, without any Fourth Amendment limits.

Second, the Carpenter case is important because location tracking has the potential to be incredibly invasive of our privacy. We carry our cell phones with us virtually everywhere we go, and the ability to track our phones is essentially the ability to track our movements. Monitoring everywhere that a person goes, day in and day out, can reveal intimate details about that person’s life. As one federal appeals court put it, “A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups—and not just one such fact about a person, but all such facts.” Allowing the government to gather information about every citizen’s movements without constitutional restriction would drastically expand the government’s power to monitor American citizens.

To be sure, the Constitution is not the only game in town when it comes to regulating police behavior. Under current law, police may be somewhat constrained in their ability to obtain cell-phone location data. If government agents want to obtain location data themselves, the Stored Communications Act requires them to obtain a court order. An order can be issued when the police show that the records sought are “relevant” and “material” to a criminal investigation. This provides some constraint on location surveillance, but courts have found this standard to be far lower than the probable cause required for a warrant. Beyond the lower standard, statutory privacy protections are not as permanent or as strong as constitutional protection. Congress could repeal the Stored Communications Act by majority vote, and a major terror attack could lead to a dramatic expansion of the government’s statutory surveillance powers, as 9/11 did. Statutory protections without constitutional support have also failed to protect privacy before. The era of unrestrained government wiretapping occurred even though such conduct was ostensibly prohibited by statute, and ended only after the Supreme Court declared such wiretapping unconstitutional.

In fact, these issues are important because the government has a long history of abusing its surveillance powers when those powers are left unchecked. In 1928, the Supreme Court held that the Fourth Amendment did not apply to most government wiretaps, a decision that was not reversed until 1967. In the intervening years, the FBI recorded hundreds of thousands of private conversations. Federal agents recorded calls between attorneys and their clients, tapped the phones of journalists and congressmen, and recorded the personal conversations of Supreme Court justices. The FBI used these recordings to monitor political groups, influence judicial appointments, threaten civil-rights leaders, and intimidate or discredit members of Congress investigating its activities. Infamously, the FBI used wiretapping to try to discredit and intimidate Martin Luther King, at one point attempting to drive King to commit suicide.

Nor are abuses of surveillance power a thing of the past. In recent years, federal and local law enforcement officials have used surveillance powers to spy on their spouses or love interests, to gather personal information on critical bloggers and online commenters, to spy on defense attorneys in criminal trials, to obtain the private emails of political activists, and to identify and surveil anti-Trump protesters. These incidents are likely the tip of a much larger iceberg, as surveillance abuses often do not come to light for decades, if ever. Allowing the government to monitor the movements of any or all U.S. citizens indefinitely would expand the government’s surveillance powers to an extent unseen since the wiretapping era. Allowing it to collect all electronic information exposed to third parties would give it even greater power, and the ability to observe and analyze virtually every aspect of our lives. If history is any guide, these extraordinary powers would result in extraordinary abuses.

The Supreme Court’s Cell-Phone-Tracking Case Has High Stakes