Last week, the Supreme Court published its long-awaited opinion in Carpenter v. United States. The case involved whether the government needed a warrant to obtain “cell-site records” from individuals’ cellphone carriers. Such records locate a person’s general whereabouts based on the communication between a particular phone and the towers through which those phones get service. In this instance, those records helped to show a defendant’s (Timothy Carpenter) proximity to a robbery, thus aiding in securing his conviction.
In a 5-4 decision, the Supreme Court required the government to get a warrant in order to obtain these records. To make this decision, the justices confronted dueling claims: an individual right and a government obligation.
On one hand, we possess property rights that confine the state. The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects.” Thus, this right includes saying who can and cannot touch, rummage through, or take these properties—unless the government obtains a warrant.
On the other hand, governments exist to protect us from crime. That obligation requires the state to use effective means to find and convict perpetrators.
The most important question going forward seems to be determining what exactly comprises our “persons, houses, papers, and effects.” That will show whether a claim to individual rights or to governmental obligation should prevail. Rapidly developing technology makes that determination difficult. Justice Anthony Kennedy’s dissent argued in essence that the government should win because nothing of Carpenter’s was searched or seized. The phone companies owned these records. They, not the defendant, used them for various marketing and other purposes. Furthermore, the courts have not required a warrant for the government to obtain comparable business records, such as bank statements. In such instances, sharing that information with a third party, like a bank or a cellphone company, negates a “reasonable expectation of privacy.”
Yet two other opinions claimed the government did search something of Carpenter’s. The majority seemed to say that Carpenter’s person was searched. They did so by citing the expansive nature of this technology and thus the government’s capacity for pervasive surveillance. You may voluntarily surrender control over knowledge of your whereabouts in certain instances. But it is hard to include in that category all types of cellphone usage, much less mere possession. Second, Justice Neil Gorsuch’s dissent stated that “[i]t seems to me entirely possible a person’s cell-site data could qualify as his papers or effects under existing law.” Stored information of where you traveled comprised a record of your life and thus one of your effects.
The majority (and Gorsuch) appeared to have the better of the argument. Our cellphones seem to do everything. Pervasive surveillance through them does appear to comprise a search of yourself and your things. To protect individual rights, the government in these cases should get a warrant.
Still, we should hope the court is careful not to tip too far against the government. In our age of rapidly developing technology, we must remain cautious both ways. We should allow the government the means to protect us. But, through the Fourth Amendment, we must never allow it the means to oppress us.
Adam Carrington is assistant professor of politics at Hillsdale College.
