Quick Reactions to Today’s Carpenter Oral Argument – Post 1

Dear Readers,

As you may know, the Court heard oral argument in Carpenter v. United States this morning, and the transcript was posted this afternoon. Matt Tokson (Utah) and Lior Strahilevitz (Chicago) have been blogging about Carpenter all week, so what follows are there thoughts on the argument. Lior will post his thoughts here first, and then Matt will share his thoughts in a subsequent post. The transcript is available here, and the dialogue will provide page references to the transcript.


First off – kudos to Matt, whose ears must have been burning today! The Empirical Fourth Amendment Scholars’ amicus brief that he wrote with Matthew Kugler, Sarah Schrup, Christine Scott-Hayward, and me got a couple of mentions during the oral argument, at pages 17 and 48 of the transcript. Both Carpenter’s attorney, Nathan Wessler, and Justice Sotomayor brought up the brief and the scholarship summarized therein, particularly Matt’s terrific Northwestern Law Review article.  I’m glad the empirical article and brief seemed to be helpful to counsel and at least one justice. Regardless of what the Court decides in Carpenter, it will be fun to see how public expectations of privacy adjust to the decision in real time. That is something that I’ve written about with Matthew Kugler (Northwestern), in an article that the University of Chicago Law Review published this morning. And we’ll have more work like that in the future.

I’ll also take a moment to brag about my Chicago colleague Will Baude, whose Harvard Law Review article with James Stern (William & Mary) pretty clearly shaped Justice Gorsuch’s approach to the case.  If you want to make the point that empirical and theoretical legal scholarship can be helpful to the Supreme Court when it considers hard cases, this was a good day.

Second, I thought I’d highlight a few moments in the oral argument transcript that jumped out at me. I thought the best move a lawyer made in the case was Wessler’s response to questioning from Justices Alito and Ginsburg. Wessler was faced with what I regard as one of the government’s two best arguments – the idea that Congress should determine when reasonable expectations of privacy exist, and they’ve done that in the Stored Communications Act. (The government’s other strong argument is that the Court should just follow Smith and Miller, and view the third party doctrine as dispositive.) That’s an argument that Justice Alito seems partial to, based on his Jones concurrence. Wessler argued (at pg. 19) that we can view Congress as having given law enforcement options – get a warrant when it’s trying to collect particularly sensitive information and a 2703(d) order when it’s getting less sensitive information. Indeed, you can push Wessler’s argument further and say that the government’s reading of the Stored Communications Act arguably renders the section 2703(c)(1)(A) warrant requirement superfluous. Because, after all, why would the government ever seek a warrant when it can just get a 2703(d) order much more easily? Wessler’s argument didn’t occur to me previously, but it really blunts the government’s point, though I’m not at all sure it convinced Justice Alito. That’s excellent lawyering on Wessler’s part, though, a real high point in a fine argument.

Third, I am not sure how to read the laughter after Justice Kennedy’s statement on page 26 that if he knows his cell phone is being tracked via cell tower geolocation and those records are being stored, then most people must know it too. I mean, if he was being sarcastic, then great. Of course an experienced Supreme Court justice who has been an appellate jurist for decades, is extremely well-educated, relatively affluent, etc. is going to know more than the average person, even when it comes to cell phone technology. Only a third of Americans can name even a single branch of government! So I guess I really want to know whether Justice Kennedy was being self-effacing or whether he was being serious. If the latter, then I really wish he would sit down to digest the data Matt collected, which shows how little most people understand about what data their phones collect and the phone companies store. Lawyers have to always keep in mind how unrepresentative our own social networks are of the nation as a whole. Combating that problem is why we collect this data.

Fourth, the Court was struggling a little bit with the question of property rights in stored cell site records. Pg. 55. I’m not sure the ball was advanced very far. As a scholar of both property law and privacy law, I found the discussion intriguing though. I do think there are examples of situations in which a third party might have property rights in information, but the information concerns me so I have some residual property interest in it as well. This was a point that Wessler made in rebuttal. The first example that springs to mind is a photograph of me that a journalist takes without my consent. It is surely the case that if someone breaks into the journalist’s office and steals the photo, then uses the image of me for commercial purposes without my permission, they’ve violated my right of publicity. And that’s true even though I didn’t create the image or even know of its existence. So there are definitely instances where property law (or IP law) explicitly does something like what Justice Gorsuch was suggesting. But I am not sure there is a conversion case that gets us all the way there, so probably the positive law approach requires reasoning from first principles rather than relying on clear common law precedents. (Hobby horse Property professor moment: I was gratified when Justice Alito described the right to destroy property (pg. 56) as a hallmark test for whether someone owns something.)

Fifth, Justice Sotomayor made an interesting argument in distinguishing Miller from Carpenter on the basis that human beings handle deposited checks and other banking information but all the data collected to create historic cell site information was fully automated, so a human being never saw it. I can think of at least one smart scholar who agrees with her.

A final thought. People in the room who have great instincts, like Orin Kerr and Paul Ohm, both seemed to think that Carpenter will prevail based on their tweets. From the transcript I’m less sure about that. But this is an instance where I think that there’s probably a lot of information to be gleaned from body language and tone of voice that doesn’t come through in the transcript.

Matt, what jumped out to you? And what did our readers think?

[See this post for Matt Tokson’s responses.]




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