Just when you think you have a beat on the Supreme Court, they always seem to surprise you. Take the decision issued in Carpenter v. U.S., issued last Friday, June 22. The court held that a judicial warrant, based on probable cause, is required before law enforcement officials can call up your cellphone company and find out where you’ve been every few minutes for a given period of time.
Perhaps you saw the 5-4 decision in favor of Timothy Carpenter coming; but, admit it, you probably thought it would divide along the traditional conservative-liberal lines. It didn’t. Instead, we got an opinion written by Chief Justice Roberts, appointed by President George W. Bush, joined by liberal Justices Ginsburg, Sotomayor, Kagan, and Breyer; conservative-leaning Justices Thomas, Alito, Kennedy, and Gorsuch dissented.
Where did that split come from? Who knows? Perhaps it starts with the fact that this was a very complicated case, if you analyze it based strictly on legal precedent. The court was faced with plenty of past cases pointing in both directions, enough that any possible combination of the nine justices could have been in play.
Before looking at the Roberts opinion, let’s review the facts. Timothy Carpenter was one of several men connected to a series of robberies at Radio Shack and T-Mobile stores in Detroit. Four suspects were arrested in 2011, one of whom confessed both (a) that the group had robbed several stores in Michigan and Ohio over the prior four months and (b) that there were 15 different accomplices. The suspect gave the FBI the cellphone numbers of some of the group.
Armed with that information, here’s what law enforcement didn’t do:
- actually search anyone’s cellphone,
- hide a camera to spy on anyone,
- eavesdrop on anyone’s phone conversations, or
- enter anyone’s private home or search any private papers.
Instead, law enforcement demanded information that cellphone companies already had in their computers: logs of the locations of each customer over a period of time (at least when the phones are turned on). That data is often retained for quite a long time and, in fact, the data obtained here covered 127 days and tracked 12,898 location data points of where the targets had gone with their cellphones.
That’s a whole lot of information; in fact, you may not even know that your phone company keeps all that data about you; but they do. Companies keep track of where all of the roughly 400 million cellphones (a number notably higher than the 326 million people living here) in this country wander around. If they didn’t have this information, they couldn’t find you when someone called you, and they wouldn’t have all the information they need to manage their networks. Whether they need to keep individual location data for as much as 127 days is a different matter, but the length of time was not itself at issue in the litigation. Continue Reading