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  • Robert Stines

Justice Gorsuch has millennial kids

Recently, in Carpenter v. United States, the US Supreme Court ruled that an individual maintains a legitimate expectation of privacy in the record of his/her physical movements as captured through cell-site location information. In layman's terms, the Government should, in most cases, get a warrant before tracking your movements through your cellphone (The Wire fans can relate).

Justice Gorsuch, the newly appointed justice, and one of the conservatives on the Court, disagreed and wrote a dissenting opinion. In reading his dissent, I am convinced his kids are millennials.

Cellphone Trackers

Before going further, here are some interesting facts on cellphones. There are 396 million cell phone service accounts in the United States—for a nation of 326 million people. Cell phones continuously scan their environment looking for the best signal, which generally comes from the closest cell site. Modern cell phones tap into the wireless network several times a minute whenever their signal is on, even if the owner is not using one of the phone’s features. Each time the phone connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI). Wireless companies keep this information for various reasons, one of which is to sell aggregated location records to data brokers.

Several Robberies, Many Cellphones, One Snitch

In 2011, police officers arrested four men suspected of robbing a series of Radio Shack and TMobile stores in Detroit. One of the men confessed that, over the previous four months, the group had robbed nine different stores in Michigan and Ohio. The suspect (or snitch) identified accomplices and gave the FBI some of their cell phone numbers.

With the confession, and understanding the treasure trove of evidence in CSLI, the prosecutors applied for court orders under the Stored Communications Act to obtain cell phone records for several suspects, including Timothy Carpenter.

A magistrate judge granted the order and the Government obtained 12,898 location points cataloging Carpenter’s movements over 127 days—an average of 101 data points per day. The key point here is that the Government did not need, and thus, did not obtain a warrant to gather this information.

Obviously, the feds arrested Mr. Carpenter.

At trial, through the use of the CSLI, the Government produced maps that placed Carpenter’s phone near four of the charged robberies. Carpenter was convicted on all but one of the firearm counts and sentenced to more than 100 years in prison.

Carpenter’s attorneys fought to strike the cell tower evidence arguing that it violated his Fourth Amendment right to be protected from unreasonable searched and seizures. The trial court disagreed. After losing an appeal, Carpenter petitioned to the Supreme Court.

The Third Party Principle

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

According to the Supreme Court, the basic purpose of this Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.

The Supreme Court previously determined, however, that a person has no legitimate expectation of privacy in information she voluntarily turns over to third parties. Because of the third party principle, the Government is typically free to obtain the information you voluntarily provide to banks, telephone companies, accountants, maybe even your doctor.

The fact that Carpenter continuously, but unknowingly, revealed his location to his wireless carrier implicated the third party principle. This is why the trial court and the appeal court decided that Carpenter’s cell-site location information was fair game for the Government - no warrant necessary.

Supreme Court Disagrees

In what might be considered a strained analysis, the Supreme Court disagreed with the lower court and decided that the Government should generally obtain a warrant before gathering CSLI.

The Court noted that cell phone location information is detailed, encyclopedic, and effortlessly compiled. The timestamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his “familial, political, professional, religious, and sexual associations.”

Ultimately, the Court held that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI, even though it is kept by a third party (e.g., wireless companies).

Consequently, the Court ruled that the Government needed a warrant to obtain Carpenter’s CSLI. Because the Government did not obtain a warrant, the Supreme Court kicked the case back to the trial court.

Justice Gorsuch’s Dissent

Most were not surprised that Gorsuch disagreed with the majority. His reasoning, however, might be the most relevant in the cyber age.

Gorsuch noted that Americans, especially the younger generation, use the Internet to do most everything. Smartphones make it easy to keep a calendar, correspond with friends, make calls, conduct banking, and access entertainment.

He noted that Internet companies maintain records about us and, increasingly, for us. Even our most private documents now reside on third party servers (Dropbox, Google Drive, iCloud). Our emails are stored in a third party sever somewhere in the world. Under the third party principle, the police can review all of this material, including our e-mails, on the theory that no one reasonably expects any of it will be kept private, because it was voluntarily provided to Internet and data storage providers. But, and as Gorsuch states, “no one believes that . . .”

Just because you entrust your data to a third party does not mean you lose any Fourth Amendment interest in its contents.

Despite the third party principle, few doubt that our emails should be treated much like the traditional mail. No one expects the Government to obtain our snail-mail from the United States Postal Service just because you voluntarily placed it in the mail box for delivery.

The legislature understands the challenges modern society faces in dealing with data stored on third party servers, and are actively engaging in the area of third party data storage and the rights users enjoy.

To be clear, Gorsuch does not subscribe to "privacy rights" under the Fourth Amendment, instead he believes the Fourth Amendment hinges on property rights. In his view, data, such as a record of our physical movements as captured through CSLI, is a property right worthy of protection.

Gorsuch's dissent might be lost to history because none of the other 8 justices joined his opinion. But, Gorsuch's opinion provides a glimpse into his understanding of modern society.

Data is property that should be protected.

Many millennials understand there is nothing private about posting on Instagram, Snapchat or what ever social media platform is trendy. Using Tinder, Grindr, Bumble or any dating app strips privacy from intimacy. Deciding to use free gmail or hotmail comes with an understanding that these companies have access to our data. All of these companies are selling our data for huge dollars. Data has a monetary value; therefore, it must be property, of some sort.

Kudos Gorsuch

In the years to come, the Court will handle more issues related to technology, the internet, and how modern society operates in the Cyber Age. The nine, seasoned Supreme Court justices who will decide these issues need to understand how their decisions will impact a generation that is highly educated, technically savvy, globalized, connected, diverse, and mobile.

Justice Gorsuch might not be the champion for millennials, but his opinion conveys a person that understands the generation of mocha lattes, social media, and e-commerce. This is why I believe his kids must be millennials.


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