Returning to the controversy over how the Constitution affects modern technology, the Supreme Court agreed on Monday to decide whether police or federal agents must get a search warrant before they may collect data on where a cellphone has been used – data that can allow the officers to track a criminal suspect’s movements.
The review of that issue may lead the court to reconsider a famous 1979 decision that the federal government has used in recent years to justify the massive secret monitoring of electronic communications. That ruling, in the case of Smith v. Maryland, has also played a role in a series of court rulings allowing agents or police, without a warrant, to gather information from cellphone towers that shows locations where such a device was used.
The 1979 decision declared that telephone users have no right to gain access to telephone company records about how the telephone system is used, including the routing of calls. That ruling has been challenged repeatedly in recent cases involving claims of access to, and privacy in, cellphone tower data locating where a phone has been used.
In the case that the Justices accepted for review, that kind of information helped place a robbery suspect near the scenes of several of the crimes, and at about the same time as those robberies happened. For the individual who took the case to the Supreme Court, Timothy Ivory Carpenter of Detroit, that data was gathered over a period of 127 days and it was used as evidence leading to his conviction on nine charges of armed robbery. He is serving a prison sentence of nearly 116 years.
In his case, agents did not get a search warrant to seek that information from the cellphone service companies. To get a warrant for a search, officers must have “probable cause” to believe that information they seek indicates that a crime probably has been committed.
In Carpenter’s case, federal agents gathered the information based on three court orders of a kind that does not require proof suggesting a crime. They obtained those orders under the Stored Communications Act of 1986, which allows law enforcement access to cellphone tower data if the information might be linked to a criminal investigation – a significantly less demanding standard.
The U.S. Court of Appeals for the Sixth Circuit, in upholding Carpenter’s conviction, relied upon its view that the Fourth Amendment’s search warrant requirement does not protect the privacy of telephone records that show the routing of calls but does protect what was actually said in those telephone conversations.
The records about routing of calls – how one caller was linked up with another or where the caller was at the time – belong to the service provider, and the callers have no right to get those records or use them in their defense in court, the Circuit Court said.
A cellphone tower, that court said, does not intrude on the caller’s use of a phone because it does not monitor the conversation in the calls but only establishes that the caller used the provider relay tower near where calls were made calls. Users of cellphones must be fairly near such a tower in order to make calls. Towers are much more concentrated in urban areas.
The phone companies use location data, the Circuit Court added, to check for weak spots in their service network or to determine “roaming” charges that a phone user runs up when using other phone networks beyond the home company’s facilities.
Carpenter’s appeal contended that information about where a cellphone has been used can reveal much about the whereabouts of the user, especially when the data reflects cellphone activity over a lengthy period of time – as in his case. His appeal relies in significant part upon a 2012 Supreme Court ruling, in the case of United States v. Jones, finding some right of privacy under the Fourth Amendment when police attach a GPS monitoring device to a car used by a suspect.
The Supreme Court has twice before refused to hear an appeal on the issue in the case, and the Trump Administration’s lawyers cited that refusal in urging the Justices not to hear Carpenter’s appeal.
Although the Administration contended that the federal appeals court have not reached differing results on that issue, Carpenter’s lawyers contended that those courts have shown significant uncertainty about where the privacy issue stands in view of modern technology. Five courts of appeals have dealt with the cellphone tower question, the appeal noted, and their review resulted in 18 separate majority, concurring and dissenting opinions. That, his lawyers said, “highlights the need for this court to act.”
The Justices will hold a hearing on the case at their next term, starting in October, and then decide it.
In another significant action on Monday, the Justices refused, without giving any explanation, to hear a case by a Marine who asked for clarification of when government action puts a burden on an individual’s exercise of their right to religious freedom. The case of Lance Corporal Monifa J. Sterling involved an incident when one of her superiors ordered her to remove from her workplace three pieces of paper containing Bible verses. A military appeals court rejected her claim of a violation of her rights under the Religious Freedom Restoration Act.
(NOTE: This post also appeared today on Constitution Daily, the blog of the National Constitution Center in Philadelphia.)