Quick Reactions to Today’s Carpenter Oral Argument – Post 2
[Lior Strahilevitz (Chicago) and Matt Tokson (Utah) have been blogging about Carpenter v. United States all week. Below are Matt’s thoughts about the Carpenter oral argument and his reply to Lior’s previous post on the Carpenter oral argument. 11/30 update: Lior’s replies to some of Matt’s questions and arguments are italicized and in brackets.]
Hi Lior – I was thrilled about the shout outs for our Empirical Fourth Amendment Scholars’ brief and my Northwestern University Law Review article during today’s oral arguments, at pages 17 and 48 of the transcript. In fact, I blame my delay in posting on all the excitement this has generated. I look forward to your piece on the effects of this decision on public expectations of privacy.
I too was struck by Justice Kennedy’s quip on page 26 that if he knows that cell phone companies collect location data, everyone else must too. (It followed a more serious assertion that “almost everybody” knows that their cell phone companies store their location data.) It’s not just that we have survey evidence that shows most people don’t know this. But Justice Kennedy is in the economic and educational elite, a group that likely knows far more than the average Joe about technology and surveillance. More to the point, he’s a judge hearing a case about the specific technology. So of course he’s heard of it. As I describe on page 172 of my paper about knowledge and the Fourth Amendment, judges do a poor job of assessing societal knowledge, in part because they are humans and humans tend to automatically (and irrationally) impute their own knowledge to other people. Assuming that it was meant to be taken seriously, this is a very clear example of that phenomenon.
Like you, I was intrigued by the question of property rights in third party cell phone records. As sympathetic as I am to the idea that people have a strong interest in their cell phone records, one that is protected to some degree by statute, I confess I don’t see how to characterize this as a property right without distorting the concept of property. Lior, did you have any thoughts on Carpenter’s attorney’s brief mention of trade secrets in his back-and-forth with Gorsuch? That struck me as a potentially interesting analogy. [Lior chiming in: I don’t see how the trade secrets analogy gets Carpenter any traction in this case. Trade secrets are private information that have commercial value to a firm, so when we’ve seen trade secrets analogies arise in Fourth Amendment cases it’s involved things like aerial surveillance of a chemical plant, as in Dow Chemical. Carpenter’s cell phone carrier has a trade secret interest in the data, but the interest is limited by the Stored Communications Act and the carrier isn’t asserting such a proprietary interest in this litigation. That does not mean that Carpenter loses under the positive law model. Will Baude argues here and Richard Re argues here that Carpenter should win under the positive law model. I just think if they win it’s going to be on something besides a trade secrets rationale. That said, Justice Gorsuch’s line of questioning suggests he might have something up his sleeve. Maybe him and his law clerks have combed through Michigan property law and come up with a really helpful precedent for the property rights perspective.]
Let me highlight a few other themes from the oral argument. First was that none of the Justices seemed to care for the mosaic theory pushed by Carpenter’s counsel. Even the Justices that appeared to favor Carpenter noted that it was tough to draw a conceptual line between 1 day of historical cell phone tracking and 100 days. Maybe they shared the intuitions of the people surveyed in Lior and Matthew Kugler’s study on the mosaic theory. [Lior again: I don’t think that’s the explanation. In Jones five justices seemed to have intuitions that were very much in line with the mosaic theory, and with Judge Ginsburg’s eloquent articulation of it in the DC Circuit. But in the intervening years they might have come around to the view that making the mosaic theory into workable doctrine is very hard, as Orin Kerr and other scholars have suggested.] In this case at least, I think the Justices are correct to eschew the mosaic theory. With historical location surveillance, the potential scope of surveillance, and the resulting chilling effects, extend for years. So even if the police only track me for 1 day, I would be subject to tracking for my entire life, or at least as far back as records are kept. Justice Roberts seemed sympathetic to this view in his remarks on page 12.
Second, the most successful argument made by the government and the Justices sympathetic to its position was that Smith and Miller are expansive precedents and the surveillance they allow is no worse than that of limitless location tracking. I think the amicus brief filed by the Scholars of Criminal Procedure and Privacy did a great job of explaining the distinctions between those cases and Carpenter. For instance, information technology and infrastructure has changed radically since the 1970s; those cases involved voluntary and knowing transmissions of information and Carpenter very likely does not; cell phones, unlike land lines, can be tracked even if the user takes no action, etc. But even setting those distinctions aside, it would be perfectly appropriate for the Court to declare that the principles of Smith and Miller are obsolete and that their questionable holdings will be upheld simply as a matter of stare decisis. Indeed, one aspect of Miller might be eliminated as simply untenable. Justice Alito notes on page 5 that things like credit card receipts can reveal a great deal about a person’s movements and habits. And he’s right. The Court might consider limiting the scope of Miller to less revealing and less intimate bank records and account information – perhaps by signaling a willingness to do so in this case and then waiting for a defendant to challenge the warrantless collection of credit card records in a later case. [Lior: This is a very good point. One of the things I keep thinking about is the discussion in Riley of how the process of getting a warrant has changed. As the Chief Justice mentioned in Riley and McNeely, magistrate judges can authorize searches that arrive via email very quickly on an iPad. That wasn’t true in 1979. So maybe the Court sees the transaction costs of getting a warrant falling and the probable cause standard as appropriately protective of privacy interests. There probably was probable cause in Smith v. Maryland, and in Carpenter, for that matter. So maybe this will be another “get a warrant” kind of opinion that signals trouble for the 1970s era third party doctrine precedents in future cases.]
More broadly, Breyer seems to endorse the idea that more sensitive and personal data will be protected, while less sensitive data may not be, on pages 66-67. In the end, I would guess that the Court distinguishes Miller and Smith along these lines.
Finally, I am reasonably confident that the Court will wind up favoring Carpenter. Based on the transcript, I have a hard time seeing Sotomayor, Ginsburg, Breyer, or Kagan siding with the government here, and I think Gorsuch feels strongly that the government cannot obtain these records without violating citizens’ rights. Chief Justice Roberts has shown himself in cases like Riley v. California to be attuned to the problems that new technologies pose to privacy. More generally, I think the most important theme of the argument and the case is simply that the Court, and society in general, is uncomfortable with the enormous scope of the power that the government is claiming here. Justice Kagan on page 69, Justice Gorsuch on page 73, and other Justices as well signal that they cannot endorse the concept that there is no constitutional limit on the government’s collection of even very sensitive information just because it rests in the databases of a third party. [Lior: Maybe. The fun part about this is that we don’t know what cards Justice Gorsuch is holding in his hand. The justices asked lots of hard questions to both advocates. And a majority opinion reversing the Sixth Circuit is going to be a challenging opinion to write, with a lot of heavy lifting, so conference votes could conceivably shift.]
That said, oral argument is no guarantee of how Justices will eventually vote. I’ll be waiting excitedly to see how the case eventually comes out.