Alito, Kennedy appear receptive to argument that privacy rights do not come into play
By Mark Sherman
Associated Press
WASHINGTON (AP) — The Supreme Court signaled Wednesday it could impose limits on the government’s ability to track Americans’ movements through collection of their cellphone information.
The justices heard 80 minutes of arguments in a case at the intersection of privacy and technology.
Chief Justice John Roberts and the court’s four liberal justices indicated they could extend the Constitution’s protection against unreasonable searches to police collection of cellphone tower information that has become an important tool in the investigation of crimes.
In the case before the court, investigators acquired 127 days of cellphone tower information without a search warrant that allowed them to place Timothy Carpenter in the vicinity of a string of robberies of Radio Shack and T-Mobile stores in Michigan and Ohio. Carpenter is serving a 116-year prison term for his role in the robberies.
“The whole question is whether the information is accessible to the government” without a warrant, Roberts said. Investigators were able to get the cell tower records with a court order that requires a lower standard than the probable cause, or strong evidence that a person has committed a crime, that police must show to get a warrant.
Underlying the argument was some justices’ wariness of new technology and its ability to track not just movements, but purchases, subscriptions, internet searches and every aspect of Americans’ lives.
“Most Americans, I think, still want to avoid Big Brother,” Justice Sonia Sotomayor said.
On the other side, Justices Samuel Alito and Anthony Kennedy seemed most receptive to the administration’s argument that privacy rights do not come into play when the government gets records from telecommunications providers and other companies that keep records of their transactions with customers.
“The technology here is new, but the legal principles the court has articulated under the Fourth Amendment are not,” Justice Department lawyer Michael Dreeben said.
The administration relied in part on a 1979 Supreme Court decision that treated phone records differently than the conversation in a phone call, for which a warrant generally is required.
The court said then that people had no expectation of privacy in the records of calls made and kept by the phone company. That case involved a single home telephone.
The Supreme Court in recent years has acknowledged technology’s effects on Americans’ privacy. In 2014, the court held unanimously that police must generally get a warrant to search the cellphones of people they arrest. Other items people carry with them may be looked at without a warrant, after an arrest.
The robberies took place at Radio Shack and T-Mobile stores in 2010 and 2011. Carpenter organized most of the robberies, in which he signaled the others in his group to enter the stores with their guns drawn, according to the government’s Supreme Court brief. Customers and employees were herded to the back and the robbers filled their bags with new smartphones. They got rid of the guns and sold the phones, the government said.
Police learned of Carpenter’s involvement after a confession by another person involved in the holdups. They got an order for cellphone tower data for Carpenter’s phone, which shows which towers a phone has connected with when used in a call. The records help approximate someone’s location.
Courts around the country have wrestled with the issue. The most relevant Supreme Court case is nearly 40 years old, before the dawn of the digital age, and the law on which prosecutors relied to obtain the records dates from 1986, when few people had cellphones.
The judge at Carpenter’s trial refused to suppress the records, and a federal appeals court agreed. The Trump administration said the lower court decisions should be upheld.
Even if Carpenter wins at the Supreme Court, it may not matter to his conviction or sentence.
“Is any of this going to do any good for Mr. Carpenter?” Alito asked.
