A big win for the 4th Amendment and for privacy rights. Justice Roberts’ opinion is that cell phones are different. And you can’t track people indefinitely. Although the court was divided, I suspect that most Americans would agree with Roberts here.
Those old out-of-date 70s cases don’t work well with new technology. And as much as Alito and Thomas would like to hold on to those cases, the Court is not going to be handcuffed to them. Alito also complained that there is going to be a “blizzard” of litigation because of the decision. Why? Is it so hard for cops to go get a warrant for this material. If there is a question, get a warrant. It’s not a big burden.
Quartavious Davis lost this issue before the en banc 11th Circuit court (I argued it for Davis) and the Supreme Court denied cert, which was a huge bummer. The 11th Circuit, per Judge Hull, felt bound by the third-party doctrine cases from the 70s, like Miller and Smith. Hull basically wrote an opinion that tracked Alito’s dissent. The 11th Circuit dissenters, Martin and Jill Pryor, are vindicated.
Here’s the amicus brief we did in Carpenter.
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I'm glad the court went this way. Or better said, I'm glad that the law is ending up where it appears to have (for now). But I think that from a pure mechanics of law/logic game perspective, the majority got it wrong and Thomas got it right when he wrote:
ReplyDelete"By obtaining the cell-site records of MetroPCS and Sprint, the
Government did not search Carpenter’s property. He did
not create the records, he does not maintain them, he
cannot control them, and he cannot destroy them. Neither
the terms of his contracts nor any provision of law makes
the records his. The records belong to MetroPCS and
Sprint."
Of course, Congress can fix this with legislation making these sorts of records belong to the individuals and not to the cell phone companies. This is not unlike what's going on in Europe with collection of information through the Internet.
I'd much rather see Congress do its job rather than forcing the hand of the judiciary into absurd contortions of the law to arrive at good policy. (which is what happened here - a contortion of existing "bad law" by the majority to arrive at a place that is consistent with good policy) This puts the court in a bad place and lends credibility to the loons at the extremes of our political spectrum who shout about "activist judges."
12:50
ReplyDeleteWhat?! So, you (and Thomas) are o.k. with the government tracking your every move, physically and on-line, collecting infinite amounts of data that allow them to know every intimate detail of your life because it just so happens the technology has evolved so that all that data is kept by a third party with no choice for an individual NOT to have that data collected and stored?
WOW!
@9:52a,, from 12:50pm. I'd encourage you to read more carefully. Sentences like the following might help you understand my point:
ReplyDelete"I'm glad the court went this way. Or better said, I'm glad that the law is ending up where it appears to have (for now)."
and
"Of course, Congress can fix this with legislation making these sorts of records belong to the individuals and not to the cell phone companies. This is not unlike what's going on in Europe with collection of information through the Internet."
No, I am not ok with the government tracking our every move, etc. But first of all, the government isn't the one collecting the information. Rather, we are voluntarily giving it to our cell carriers as they collect it for their own purposes. Law enforcement is then exploiting this market condition in a perfectly logical (albeit distasteful) way. And I think Congress should take action (like the governments of Europe are doing) to stop this and to protect its citizens. After all, Congress (and not the appointed-for-life judiciary) is elected to represent the people in the creation of law.
Also, I disagree with the premise that this is an issue created by the evolution of technology. This is a problem created by contract. There is absolutely nothing technological in nature that requires the terms of the contracts we enter into with our cell phone carriers to grant this information to them. Technology does not prohibit those contracts from containing terms and conditions designed to allow cell phone users to retain ownership of that information, to control that information, to destroy (or require the destruction) of that information, and to otherwise signal a genuine expectation of privacy.
Of course, if it were as simple as contract, we wouldn't need Congress to intervene - we'd just negotiate better contracts. The problem lies in the fundamental imbalance of negotiating power between the consumers and the small handful of monopoly-like cell phone providers. So, it is the proper function of Congress (and not the Courts) to correct this problem.
And although I'm suggesting enacting privacy laws as a solution to the problem (and we both agree on the problem), another solution would be to break up the cell phone carriers rather than allowing greater consolidation of the industry. Right now, the 3rd and 4th largest carriers (Sprint and TMobile) appear to be turning the cell phone business from a 4 carrier oligopoly into a 3 carrier oligopoly. If there were genuine competition, consumers could negotiate contracts that would provide the privacy that you and I would like to have.
Gorsuch's dissent was the best of the opinions. And the most civil libertarian of the opinions by some measure. If the vote was 4-4 without him, I think he probably votes with the majority and writes his opinion as a concurrence. Then again, maybe not.
ReplyDelete