500 words total, 2 citations.
1. The U.S. Supreme Court issued their opinion “whether police officers could seize and search, without a warrant, historical cellphone records showing the location and movements of a suspect. Lower courts had disagreed on the issue, though many had said that officers do not need warrants to access this kind of information and can instead get a user’s past cellphone location data through a court order that does not require probable cause. These courts tended to say that people have no expectation of privacy in cell service providers’ records of cellphone locations that the phones automatically transmit to the providers. The documents identify cellphone towers that are closest to people’s cellphones. Legal scholars who specialize in criminal procedure and privacy rights submitted an amicus curia brief to the Supreme Court in connection with the Carpenter case. The brief argued that electronic information that is automatically generated by individuals’ use of digital devices and collected by third parties (such as cellphone companies) is so personal and extensive that the government should not be able to gain access to it without a warrant based on probable cause” (The Criminal Law Handbook, n.d.).
After reading through the case, I agree with the decision that the “government’s warrantless acquisition of Carpenter’s cell-site records violated his Fourth Amendment right against unreasonable searches and seizures” (Carpenter v. the United States, n.d.). Today cameras watch everything we do while our phones record our location and continually sync data even if it is only to update to the newest version on Facebook. The perceived expectation of privacy is already low because of technical advances today. However, from a tech perspective, I see many users just clicking agree or accept button without reading the agreement to later find their information was sold or they indivertibly agreed to something they did not intend to. The user did not have a full understanding of the magnitude of the contract they just clicked. I know that ignorance of the law is not an excuse, but again we are not all lawyers and still take things in good faith that there is an expectation of privacy.
In my opinion, the courts have not fully embraced the digital age, and further decisions will arise of expectation of privacy. The court acknowledged that the users know that providers keep records, but should that information be readily available to law enforcement without using the proper steps to get a warrant to access that information. One example pertinent to the digital age I can think of was the Apple v. the FBI. “The dispute between Apple and the FBI arises out of an application that the agency filed with a federal magistrate judge in California, seeking assistance with the search of a recovered iPhone that during the investigation into the December 2015 attacks in San Bernardino, CA. The FBI was unable to access data on the locked iPhone, which was owned by the San Bernardino Health Department, but used by one of the perpetrators and requested that the Court order Apple to assist in decrypting the phone. But, because Apple has no way to access the encrypted data on the seized iPhone, the FBI applied for an order requiring Apple to create a custom operating system that would disable key security features on the iPhone. The court issued an order requiring that this custom hacking tool be created and installed by Apple without unlocking or otherwise changing the data on the phone. Apple has opposed the order because it is unlawful and unconstitutional. Apple argues that if the court grants the order, it will undermine the security of all Apple devices and set a dangerous precedent for future cases” (Center, n.d.).
Although I am for catching the bad guy, I also believe in defending the rights of the individual as well. If Apple created a backdoor for law enforcement, then that backdoor is also accessible to the criminal element thus making Apple phones less secure. If nothing else Apple proved to the world that their phones encryption methods were working. One article wrote, “the Supreme Court often engages in equilibrium-adjustment when new technology threatens the balance of government power. If technology gives the government too much new power that can be abused based on old rules, the court expands legal protection to restore old levels of power and limit abuses. On the flip side, if technology threatens to narrow government power too much, that can unduly limit the government’s ability to solve crimes under old rules, the court shrinks legal protection to restore old levels of power and ensure the government can still solve enough cases” (Kerr, 2018).
2: What is the dissent’s strongest argument?
Although there were different opinions in the dissents overall, Justice Alito and Justice Thomas had similarities in theirs. Justice Thomas wrote, “This case should not turn on ‘whether’ a search occurred,” he states. “It should turn, instead, on whose property was searched. In Carpenter, he argues, the CSLI records “belong to MetroPCS and Sprint.” He goes a step further than Kennedy, arguing that the reasonable-expectation-of-privacy test “has no basis in the text or history of the Fourth Amendment. And, it invites courts to make judgments about policy, not law.” ” (McCubbin, 2018).
Justice Alito “begins by noting that while he shares concerns about the “effect of new technology on personal privacy. The majority’s reasoning “fractures two fundamental pillars of Fourth Amendment law, and in doing so, it guarantees a blizzard of litigation while threatening many legitimate and valuable investigative practices upon which law enforcement has rightfully come to rely” (McCubbin, 2018). Alito’s dissent focuses on two issues: “the distinction between a search and an order requiring the disclosure of documents, and the fact that CSLI is the property of the service provider. “By departing dramatically from these fundamental principles,” Alito writes, “the Court destabilizes long-established Fourth Amendment doctrine” (McCubbin, 2018).
Both Justice’s focus was on the owner of the property (phone records) and the means law enforcement used to retrieve those records. Not saying that their opinion was wrong, but that current views might need to be revised with current technology.
Carpenter v. the United States. (n.d.). Oyez. Retrieved April 19, 2020, from https://www.oyez.org/cases/2017/16-402
Center, E. P. I. (n.d.). EPIC – Carpenter v. the United States. Retrieved April 19, 2020, from https://epic.org/amicus/location/carpenter/
Center, E. P. I. (n.d.). EPIC – Apple v. FBI. Retrieved April 20, 2020, from https://epic.org/amicus/crypto/apple/
Kerr, O. (2018, June 22). First Thoughts on Carpenter v. the United States. Reason.Com. https://reason.com/2018/06/22/first-thoughts-on-carpenter-v-united-sta/
McCubbin, S. (2018, June 22). Summary: The Supreme Court Rules in Carpenter v. the United States. Lawfare. https://www.lawfareblog.com/summary-supreme-court-rules-carpenter-v-united-states
The Criminal Law Handbook. (n.d.). Nolo.Com. Retrieved April 19, 2020, from https://store.nolo.com/products/the-criminal-law-handbook-kyr.html