The Supreme Court heard arguments Wednesday in a major privacy case that provided the first insight into how the justices view privacy rights in the digital age and how the case could splinter their traditional ideological blocs.
Questions and hypothetical scenarios floated by the justices in Carpenter v. United States suggest the high court’s right-leaning justices may differ strikingly on the proper interpretation of the Fourth Amendment. The justices are looking to decide the constitutionality of law enforcement’s warrantless search and seizure of a cellphone user’s records to uncover the person’s location and movements. The Carpenter case involves the government’s acquisition of the location and movements of a criminal suspect via the suspect’s cellphone records held by a third party.
Under current law, the federal government isn't required to obtain a warrant to get cellphone location information under what is known as the "third-party doctrine," derived from two Supreme Court decisions from the 1970s.
The Supreme Court said when a customer gives information to a third-party, such as a phone company, the customer has lost the expectation of privacy by voluntarily handing it over to that third party. That party, the Supreme Court said, can do whatever it wants with it, including giving it to the government.
The Stored Communications Act, signed into law by former President Ronald Reagan and under review in Carpenter, blocks service providers from knowingly disclosing the contents of customers' electronic communications or subscriber records.
The Supreme Court did not address any conflicts between Congress' law and high court precedent until Carpenter. No split existed in the federal appeals courts on the controversy before it hit the high court's docket.
During Wednesday's oral arguments, questions and comments from Justices Samuel Alito and Neil Gorsuch, who often have joined one another’s opinions, placed emphasis on differing aspects of the controversy, with Alito questioning the sensitivity of cell phone records and Gorsuch drilling the deputy solicitor general about Carpenter's property rights.
Alito peppered Nathan Wessler, the attorney for Carpenter, the cellphone user whose information the government warrantlessly obtained, with questions about why cell-site location was “more sensitive” than other private information such as bank records.
Alito also pointedly told Wessler, “I need to know how much of existing precedent you would like us to overrule or declare obsolete.”
Wessler answered that the cellphone records at issue in Carpenter differed from previous cases in the level of voluntary action taken by the cellphone user in developing the information obtained by the service provider.
“That’s a debatable empirical point,” Alito answered and highlighted the Verizon “Can you hear me now?” commercials as evidence that people have some understanding of how their location interacts with their cellphone use.
Gorsuch, meanwhile, asked Wessler only about a technical question before challenging Deputy Solicitor General Michael Dreeben about the existence of Carpenter’s property rights and whether the government usurped those rights.
Dreeben repeatedly disputed Gorsuch’s hypothetical that presumed a cellphone user had a property right to the location information that the third-party cellphone service provider turned over to the government.
Alito interjected to note that a cellphone user could not prevent a third-party service provider from gathering such information nor could the user get the information from the third-party themselves. Dreeben noted that Alito’s interjection provided “a lot of good reasons to not treat this” as having a property interest, as Gorsuch’s questioning had.
“So the government can acknowledge a property right and then strip it of all Fourth Amendment protection?” Gorsuch asked. The newest justice continued to question whether the federal government could acknowledge a property right and then strip the owner of Third Amendment protections and quarter armed troops in people’s homes.
Dreeben answered that he thought Gorsuch’s question strayed “pretty far afield.”
“Is it?” Gorsuch asked. “Why does a statute control the Constitution?”
As Dreeben attempted to answer Gorsuch’s barrage, Alito spoke up to note that he understood customer proprietary information to belong to the company and not the customer.
Chief Justice John Roberts noted the cellphone user’s role in creating the location information.
“This is not simply created by the company,” Roberts said to Dreeben. “It’s a joint venture.”
If Roberts’ questions operated from a framework similar to Gorsuch, Justice Anthony Kennedy’s questions may have spawned from curiosity more similar to Alito.
Kennedy questioned the cellphone user’s counsel about why the justices “shouldn’t give weight to Congress,” which Kennedy said indicated that judicial supervision was necessary in cases involving the Stored Communications Act.
The federal government’s interpretation of the Stored Communications Act, which displayed some deference to Congress, is the statute that prompted Gorsuch’s questioning the government about the supremacy of the Constitution against a federal statute.
Kennedy, in turn, questioned the government about when it needs to obtain a court order or warrant for various types of information.
Questions are not necessarily evidence of the justices’ reasoning, but it sometimes provides a guide to their perspectives. Justice Stephen Breyer, for example, began some of his comments by telling the deputy solicitor general “I agree with you,” and also talked about the kind of language he could "imagine" writing in an opinion.
“This is an open box,” Breyer said of the rights at stake in Carpenter. “We know not where we go.”
Justice Sonia Sotomayor expressed concerns about the practical implications of the government’s access to cellphone records and data.
Sotomayor noted that she does not sleep with her cellphone in bed as she said many young people do and said, “I’m not beyond believing that someday a provider could turn on my cellphone and listen to my conversations.”
Recognizing the urgency of Americans’ concerns about governmental surveillance, Carpenter's attorney urged the justices not to punt on providing a clear answer in the case and noted lower courts needed a modern legal principle they could interpret and apply.
“This is not an area where the courts should pause and wait for Congress to act,” Wessler said.