Laurence Tribe: Gorsuch just might be as protective of privacy in cyberspace as Scalia was.

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Good news: Justice Gorsuch just might be as protective of privacy in cyberspace as Justice Scalia turned out to be.

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Phoning it in

The Supreme Court’s justices want to enhance privacy protections for a digital age

But Carpenter v United States shows they are unsure about how to do so

Nov 30th 2017 | NEW YORK

THE nine justices of the Supreme Court are used to applying 18th-century principles to an America that would bewilder the constitution’s framers. Yet sometimes this is really hard. On November 29th the court considered how a 226-year-old rule, the Fourth Amendment’s ban on unreasonable searches and seizures, bears on one arrow in the government’s investigative quiver: tracking people’s movements via their mobile-phone signals. At least six justices seemed keen to widen the Fourth Amendment umbrella for the digital age, but no single way to do so emerged. “This is an open box”, a forlorn Justice Stephen Breyer said. “We know not where we go.”

The matter dates to 2011, when Timothy Carpenter was arrested for masterminding a string of armed robberies in Michigan and Ohio. The FBI built their case against Mr Carpenter on 127 days of mobile-tower data placing him near the scenes of the crimes. Under the Stored Communications Act of 1986, investigators who have “reasonable grounds to believe” a suspect’s electronic data include “specific and articulable facts” that are “relevant and material” to their investigation can secure an order compelling providers to hand it over. That’s a far easier bar to reach than reasonable suspicion—the threshold for a search warrant. In Carpenter v United States, the justices are considering whether this higher standard, known as “probable cause”, should apply when the government seeks to track digital footprints. ... According to Nathan Wessler, Mr Carpenter’s lawyer from the American Civil Liberties Union (ACLU), collecting location information without a warrant defies a “long-standing, practical expectation” that Americans’ “longer-term movements in public and private spaces will remain private”. Government collection of location data “is a categorically new power that is made possible by these perfect tracking devices that 95% of Americans carry in their pockets”. And with an explosion of newly built cell towers, providers can now estimate their users’ positions within “a broadcast radius as small as ten metres”, or “half the size of this courtroom”.

Justices Samuel Alito and Anthony Kennedy pushed Mr Wessler to explain why an individual would be more worried about keeping his tracks out of spooks’ file drawers than safeguarding his bank or landline phone records—data Supreme Court precedent says the government may access without a warrant. As sensitive as that information may be, Mr Wessler replied, it does not compare to “a minute-by-minute account of a person’s movements and associations” over weeks or months. .... With only Justices Alito and Kennedy seeming to buy the government’s argument, the newest justice, Neil Gorsuch, voiced his own take on why Mr Carpenter should win. Justice Gorsuch doubted that “the original understanding of the constitution” sanctioned easy access to individuals’ location information—especially if Americans have a “property interest” in their own data. Citing John Adams, he noted that one impetus for the revolutionary war was the government’s use of “snitches and snoops” to spy on Americans. Open-ended “writs of assistance” gave authorities licence to search anything they liked, infuriating the colonists and inspiring the Fourth Amendment.

For Jeffrey Rosen, president of the non-partisan National Constitution Centre in Philadelphia, Justice Gorsuch’s approach was somewhat surprising, if reassuring. “It suggests that he, like his predecessor Justice Antonin Scalia, may be a vigorous defender of the Fourth Amendment right to be free from unreasonable searches of our digital effects.” Ian Samuel of Harvard Law School agreed. The colonial-era reference caught the government’s lawyer “entirely off-guard”, he says. Now the justices must reckon with how to find for Mr Carpenter—no mean feat in light of the competing interests of privacy and policing. As he often does, Justice Breyer turned to the lawyers for help. “So where are we going? Is this the right line?” A solid majority of the justices know what decision they want, but “how do we, in fact, write it?” An answer should appear by the end of June.

This article appeared in the United States section of the print edition under the headline "Phoning it in"