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On Wednesday, the Supreme Court will hear Carpenter v. United States, a case experts are calling the most important privacy issue before the court in a generation. At issue, according to SCOTUS blog, is Whether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Given that nine out of ten adults in America use some kind of cell phone, a number that has increased substantially since even a decade ago, this decision regarding electronic communications and Americans privacy and property rights will be landmark.

Between December 2010 and March 2011, a group of friends in the Detroit area robbed several RadioShack and T-Mobile stores in Michigan and Ohio. Ironically, they chose to steal cell phones (note: if you steal something, dont steal an item that can be tracked). A month after the spree, four of the thieves were arrested, but not the mastermind of the scheme, Timothy Carpenter. A guilty compatriot turned over his phone, and FBI agents reviewed the calls he had made around the time he and his buddies were snatching cell phones.

Because of the Stored Communications Act, a judge granted an order for the FBIs request to obtain transactional records from wireless carriers for multiple phone numbers for [a]ll subscriber information, toll records and call detail records including listed and unlisted numbers dialed or otherwise transmitted to and from [the] target telephones [] as well as cell site information for the target telephones at call origination and at call termination for incoming and outgoing calls[.] The judge didnt grant a warrant, which would have required probable cause, and which law enforcement did not yet have.

This is where the infamous Carpenter comes in. From the records, law enforcement was able to figure out that one of the thieves had been in touch with Carpenter and, because of which cell phone towers Carpenters phone pinged, that he had been near the robberies. This led to Carpenter being arrested, convicted by a jury, and sentenced to 116 years in prison.

At first, it might not seem like there is an issue at here at all. The rub, however, lies in whether a judge can grant a warrantless search of cell phone records that reveal the phones (and thus users) whereabouts without violating the Fourth Amendment. Recall, the Fourth Amendment protects [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.] Without the police search of digital data, its possible Carpenter may never have been linked to the robberies or arrested, or the police would have had to dig up better hard evidence to get him convicted.

As the Washington Post explained, The government may only violate these rights upon issuance of a warrant. The Fourth Amendment protections include the publics content of their communications; however, federal courts have long recognized that the Fourth Amendment does not protect the public from allowing the government to obtain the information necessary to get communications from point A to point B. For example, the government can obtain from a letter or package without a warrant the sender, receiver, originating and delivery addresses, package size, and weight; however, the government must obtain a warrant before opening the package or letter to obtain its contents.

SCOTUS already has a precedent regarding phone communications. In Smith v. Maryland, the court held the government may not eavesdrop on a phone call but could obtain without a warrant the phone numbers the person dialed. In 1986, the Congress passed the Stored Communications Act, which governs the privacy of stored Internet communications.

The government is expected to rely upon these decisions to make its case that the warrantless search of Carpenters calls and cellphones whereabouts did not violate his Fourth Amendment rights. Carpenter will undoubtedly lean heavily on the Fourth Amendment itself and Riley v California to make the case that, as Lawfare said, cell phones have become intertwined into the lives of American citizens and the vast data contained within a persons phone potentially holds the sum of the individuals private life, so the routing data contains much more than the information necessary to get communications from point A to point B.

The juxtaposition between the way the Fourth Amendment is written and how much technology has advanced since those times lies at the heart of legal stickiness here. What constitutes houses, papers, and effects? Are cell phones, the digital data within them, and information retrieved from the cell towers from which that data bounces and databases communications companies keep to provide their services? And what exactly is a search? Must it be physical trespassing, or could it be digital maneuvering through computer search or even a hack?

The late Justice Scalia was famously a Fourth Amendment originalist, as obvious in his dissent in Kyllo v United States, which held in a 54 decision that using thermal imaging was a search and required a warrant. But the advancement of time and technology makes cases like this unusually difficult to interpret. As Lawrence Rosenthal, a law school professor, wrote:

Justice Scalias Fourth Amendment originalism hangs by a thread []Sometimes Justice Scalia himself seemed to acknowledge the difficulty of applying founding-era doctrine to contemporary contexts, as when, in 2014, he joined a unanimous Court in Riley v. California in holding that information in cellphones could not be retrieved without a warrant, despite the traditional rule that permitted police to search an arrestees person and effects incident to arrest.

Several reputable organizations have filed amicus (friend of the court) briefs in favor of Carpenter, including the Cato Institute, the Electronic Frontier Foundation, and the American Civil Liberties Union. They argue digital data is personal property.

Time will tell how the Supreme Court decides.

Original post:
Supreme Court To Hear Key Fourth Amendment Case