The Supreme Court is preparing to close out 2017 with a slew of blockbuster cases starting with a major cellphone privacy case Wednesday.
The justices will hear arguments Wednesday in Carpenter v. United States, a case about the constitutionality of law enforcement searching and seizing — without a warrant — a cellphone user's records to reveal that person's locations and movements.
The government acquired location data in 2011 on Timothy Carpenter, a suspect in a criminal investigation in Detroit, without first obtaining a warrant. The 6th Circuit Court of Appeals heard Carpenter's appeal and decided the government did not need a warrant under the Fourth Amendment.
How the justices rule could reveal their thinking about the limits of governmental surveillance in the Internet age. Orrin Kerr, a George Washington University law professor and former law clerk to Justice Anthony Kennedy, has noted that the Supreme Court agreed to hear the case without any split on the issue from federal appeals courts. None of the justices sat on the high court when it last tackled the precedents prevailing in the Carpenter case.
"Carpenter versus the United States is probably the biggest Fourth Amendment case that the court has had in at least five or six years, maybe longer," Kerr said in September at an event hosted by the Federalist Society. "Although this case is just about cell-site records, really it is about much more. This is the first case that has touched on Fourth Amendment rights, what is a search in the context of new technologies, in several years and the one that is getting to the fundamental basis of what is constitutional."
The Carpenter case has piqued the interest of the nation's largest technology companies. Apple, Facebook, Google, Microsoft, Twitter, Verizon, and several other technology companies filed a brief in August urging the Supreme Court to strengthen Fourth Amendment protections for consumers by changing the way the amendment is applied.
The major tech companies did not take an official position on the case but said the justices "should refine the application of certain Fourth Amendment doctrines to ensure that the law realistically engages with Internet-based technologies and with people's expectations of privacy in their digital data."
Under current law, the federal government isn't required to obtain a warrant to get cellphone location information under what's 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 government has applied the third-party doctrine to other contexts, said Andrew Crocker, a staff attorney at the Electronic Frontier Foundation. That includes cell site cases, Internet searches and records of emails sent.
But Crocker warned cell site location information, as the government obtained for Carpenter, reveals a lot about a person, and technological advancements will presumably enhance the location information collected by wireless companies.
"It's something that should concern everyone who uses a cellphone, which is everyone these days," he told the Washington Examiner last month. "We're all carrying these things around, and they have the capacity to paint a revealing portrait of our lives. The fact they can get that without a warrant is concerning."
The week after the Carpenter argument, the justices will hear arguments on consecutive days in major cases involving sports betting and the tension between free expression and gay rights. Oral arguments in Christie v. NCAA and Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission will be held Dec. 4 and 5, respectively.
Melissa Quinn contributed to this report.