In Carpenter, arrests made in an armed robbery case occurred because the Federal Bureau of Investigation was able to obtain “transactional records” of the cell phones owned by the alleged coconspirators. These records track the date and time of a call and the approximate position of the caller. The records were collected under the Stored Communications Act of 1986, which allows the government certain kinds of telecommunications records relevant to an ongoing criminal investigation. The defendants wanted the stored data to be inadmissible because the FBI failed to get a search warrant to acquire the records, thereby violating the Fourth Amendment.
The district court dismissed this argument and the Sixth Circuit Court affirmed the district court’s decision.
On June 22, the Supreme Court reversed and remanded. Chief Justice Roberts delivered the opinion of the Court, and ruled the government's activities violated the fourth ammendment. The government did not obtain a warrant for the search of the cell phone records, and therefore violated standing constitutional law.
Dean A. Mazzone, Deputy Chief, Criminal Bureau of the Massachusetts Attorney General’s Office
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Operator: Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Criminal Law & Procedure Practice Group, was recorded on Monday, June 28, 2018, during a live teleforum conference call held exclusively for Federalist Society members.
Laura Flint: Welcome to The Federalist Society's teleforum conference call. This afternoon, we'll discuss the recent Supreme Court decision in Carpenter v. United States. My name is Laura Flint, and I'm the Deputy Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today's call.
Today, we are happy to have with us Dean A. Mazzone, Deputy Chief of the Criminal Bureau of the Massachusetts Attorney General's Office. After hearing from our speaker, we'll go to audience Q&A. Thank you for speaking with us, Dean. The floor is yours.
Dean Mazzone: Well, my name is Dean Mazzone. I'm the Deputy Chief of the Attorney General's Office of the Massachusetts Attorney General's Office, Deputy Chief of the Criminal Bureau, and what I say here is not -- anything I say is just my own personal opinion and not the opinion of the Attorney General of Massachusetts. But it's a pleasure to be here. I'm honored to be asked to talk about this for The Federalist Society. And with that, away we go.
Carpenter v. United States, which was decided by the United States Supreme Court this past Friday -- I'll just give a little background on the case, the legal issues, just for a few minutes, and then open it up to questions. The case was something that has percolated in the lower courts and the district courts and the state courts and the federal courts of appeals for a long time, and everyone was waiting for a resolution from the U.S. Supreme Court. And we sort of got it, although as some people say, and as you may believe after I'm done with my presentation, it may raise more questions than it answers.
The question in the case and the question that the case answered is whether or not the government conducts a search in the constitutional sense when it accesses cell-site location information that’s in the possession of the carrier. That is, the cell phone company, all the time every time, whenever you activate your phone, whenever you talk to someone, whenever you use your phone, signals, as people may or may not know, bounce off a cell site which are in various locations wherever you walk, which makes it -- wherever you are, excuse me, which makes it -- not only does it make you able to make the call, connect with the tower and make the call to whoever you're calling, but that information is collected and maintained by various carriers. Your phone company keeps a record of all that.
Now, every phone company does things differently. They maintain things differently. They maintain things for various lengths of time. But the question in this case was whether, when the government via a subpoena asks that carrier for their records of your personal cell-site location information, whether that's a Fourth Amendment search. This focused on the theories of robberies of Radio Shacks, kind of mundane criminal facts, but it gives rise to profound questions of Fourth Amendment law.
Different Radio Shacks in Michigan and Ohio were robbed. Through cell-site location information subpoenaed by the United States government, their people were able to locate Carpenter and say for sure that he was in the locations of all those robberies they had. Various accomplices also testified, so with the cell-site location information combined with testimony from accomplices and other tools of surveillance, standard tools, they were able to paint -- the government was able to paint a pretty compelling picture that Carpenter was the leader of this ring. That is, he can't say he wasn't there because his phone was there at all the most important points when it came to the series of robberies.
So his argument was, "Hey, the government got all this information through my cell phone carrier. They got it via a subpoena." The showing for a subpoena is simple. All the government has to show is that there's reasonable grounds to believe that the records sought are relevant and material to an ongoing criminal investigation. That's pursuant to United States Title Section 2703(d), in which a federal magistrate judge issues the orders directing the wireless carriers—in this case Metro PCS and Sprint—to disclose the cell-site sector information, which it did. But what Carpenter said was, "No, no, no. That standard is too low. It was a search of my personal information for which I had an expectation of privacy, meaning my locations, where I was on those particular days, I have an expectation of privacy and that is my private information, even though the cell phone carrier maintains it, and they have to maintain it for them to do their job and for me to utilize their services. No, no, no. You need probable cause and a warrant," which is a much higher showing that the government has to show before they can obtain those records.
Now, this, I can tell you from my experience and almost 20 years of doing criminal prosecutions and doing drug cases, homicides, that this cell-site location information can be a huge advantage and a great tool in investigating crimes and figuring out who did what, when. What his argument did was run headlong into another argument, which is that, "No, no, no. The fact that this information was in the hands of a third party, that is the cell phone carrier, means that you have no expectation of privacy in those documents in the CSLI information." There are cases from the Supreme Court, well-established, that the government's relied on for decades that say that if you provide what you may or may not consider to be personal information to a third party, a bank, a phone company, that you've surrendered your expectation of privacy, and there is no -- and if that company decides to turn over that information to the government, be it voluntarily, be it via a subpoena, or anything, you have no recourse against the government in a criminal case.
So two of the cases that the government's always relied on are -- one has to do with bank records, which is Miller, and the other has to do with phone company records; bank records, meaning just records of transactions that the bank maintains, and the phone company records meaning just records of calls you made, not the content of calls, of course, but just the idea that your number called another number on a certain date for a certain length of time, and that there's always been no expectation of privacy—the law has recognized no expectation of privacy in those items. So that being the case, the government relied on that by saying, "No, no, no. We don't have to require probable cause as a constitutional matter. If the carrier voluntarily wants to turn over this information, they're absolutely free to. It's always been the law and that still is the law."
So the Supreme Court decided to take that case and in a 5-4 decision, the Supreme Court disagreed, famously. It's only been less than a week, but I can fairly say that they've done famously. The lineup was Chief Justice Roberts, along with Justices Breyer, Kagan, Sotomayor, and whoever the fifth justice would be, on the side of the defendant by saying, "No, no, no. Cell-site location --," excuse me, Ginsburg, -- "the cell-site location information, there is an expectation of privacy in that. What you have to look at is not so much the fact that you've -- a person turned over records to a third party, like bank records, or phone company, or who I'm calling on a particular day, but, more importantly, just exactly what kind of information you're turning over."
So this case was closely watched by jurists and litigants because they wanted to know, is the third-party doctrine going to go down? Justice Gorsuch in his dissent said the third-party doctrine may still exist, but it's on life support. The Chief Justice didn't agree with that and said, "No, no, no. Miller and Smith are still good law." That is, there's no expectation of privacy in the bank records with a bank. There's no expectation of privacy when it comes to the basic phone records that you provide for the company when you make a call. That is, those are documents generated by the company for their own reasons, and they don't really reveal anything about a person. A bank -- a check is a negotiable instrument that's used commercially all the time. The phone numbers are just a phone call. It's just certain numbers. They say who you called, but they don't say anything more about the call.
And the Chief Justice went back to a case, U.S. v. Jones, this is the GPS case which was decided a few years ago where the Court held that to put a device on a car that tracks the car—the GPS device—unknown to the driver, is in fact a search because even though the court had always said that you can be followed by the police and there's no expectation of privacy there in what you do on the roadways, the fact that your physical location can be tracked because technology has advanced in such a way that you can be tracked continuously makes the type of information now that the government's looking at actually a search. So it's the quality of the information held by the third party that make all the difference.
Professor Orrin Kerr talks about his equilibrium adjustment theory, if I have it right, which is it's not so much categorical as qualitative. And Chief Justice Roberts said cell-site location information is the same as GPS—or is going to be the same as GPS—as the technology advances. That is, you're going to be able to learn things about people, intimate details about their lives, where they go, how often they go places, from cell-site location information just like you can with a GPS. So that if the third-party doctrine survives, it doesn't survive when the government is looking for cell-site location information, and a search warrant is now required.
There were vigorous dissents. Every one of the dissenters wrote their own opinion. The opinion is over 120 pages. Kennedy wrote the first dissent, followed by Clarence Thomas. Alito wrote a very comprehensive dissent, and then Gorsuch basically just raised a lot of questions, as I said earlier, that this case may raise more questions than it answered. And that was the lineup. Again, the majority opinion was Chief Justice Roberts, with Justices Sotomayor, Breyer, Kagan, and Ginsburg all found for the defendant and said, "No, no. In a situation like this where the government's seeking cell-site location information from a third party, a warrant is required."
So, going forward, the lawyers, I would guess, especially the government, would say this is confined to cell-site location information. That is, no other type of personal information, or what a person would consider their personal information, is covered. It's only CSLI, just like GPS is GPS. It's sui generis, and for that a subpoena isn't enough anymore. We'll have to get a warrant.
So in Massachusetts where I work, we've been living with this rule for several years. Our own state court made the rule that we had to get a warrant for CSLI a few years ago, so it's not alien to us. But there are tons of jurisdictions across the country now where what would have been a subpoena—including the U.S. government—where a subpoena would have been sufficient—although I think they do get warrants now anyway in anticipation of a case like this coming down—where a subpoena would have been sufficient, it's not sufficient anymore as a matter of constitutional law for CSLI.
And again, that's something that prosecutors and investigators rely on enormously, and to the extent that now you can't just -- you have to have a higher standard to be able to ask that. That is, you have to have more information in your head, or in the prosecutor's head, to provide to a judge, than you would have to when you just had -- when you just needed a reasonable belief that the evidence would be relevant. You have to show probable cause to believe that you're going to find evidence of a crime and get a warrant for it.
So that's basically 13 minutes of background. Again, there's a lot to read. I think I gave an accurate summation of what the majority opinion says, and I didn't go so much into the dissents right now, although they made for great reading. And the back and forth is—between the majority opinion and the dissent—is really something to behold and very comprehensive and almost 120 pages. It is fun reading. And they go into the history of the—or the dissents do—go into the history of probable cause or what probable cause means, what a search is, when some of the dissenters think that the idea of just the reasonable expectation of privacy which the Court, the Supreme Court laid out decades ago was kind of a wrong turn in this jurisprudence and searches should just be property-based.
And that had a lot to do with the CSLI issue as well because, just like the bank records, the argument was, well, CSLI is the property of the carriers. They create it. 9I use my phone, my cell phone, to call my friend, I don't create a document. This is all documents created by the third party, and it's their property, and they're the ones who are subpoenaed. And to say I have a Fourth Amendment interest in that as the caller is revolutionary and is going to upset a lot of things, and it certainly is going to change the way, conceptually, a lot of these cases are argued.
So that's the end of my background, I think. It was somewhat long-winded but, I hope, accurate, and, I hope, helpful.
Laura Flint: Let's go to our first audience question.
Caller 1: Hi. In Jones, I believe all the Justices agreed the question was the reasoning. Should it be more of a property interest of trespass, or should it be the conventional reasonable expectation of privacy? And there seems to be some question as to how much Justice Scalia favored that Katz test as opposed to more of a property-based analysis. In this case, was it simply that the only way to find for the defendant was through the reasonable expectation of privacy and the property interest went the other way, or was there also some kind of debate over which is the right test or framework for evaluating privacy considerations? Go Red Sox.
Dean Mazzone: Sure. Go Red Sox.
I hope I get this right, and I think I get this right. In fact, why don't I just see if I can find the quote from John Roberts where he discusses the idea that certainly the -- I have it here. He writes, in footnote 1 on page 5, he says, "Justice Kennedy believes that there is such a rubric," meaning an all-purpose rubric for deciding cases like this, "the property-based concepts that Katz purported to move beyond. But while property rights are often informative, our cases by no means suggest that such an interest is 'fundamental' or 'dispositive' in determining which expectations of privacy are legitimate. Justice Thomas, and to a large extent Justice Gorsuch, would have us abandon Katz and return to an exclusively property-based approach."
So I think that kind of focuses on where the question was, which is that the majority opinion says, "Look, Katz is alive and well. We've never really turned away from it." And I think, further on in the footnote, he says, "No one has asked us to reconsider Katz," which is interesting, "and to that extent, it's still the law. We'll look at the property basis of it, but we also have to look from precedent at a reasonable expectation of privacy." And that just prompts from Clarence Thomas to Gorsuch to talk about, as I said earlier, it's got kind of a wrong turn and we should keep it with a property-based approach.
That would make this case very easy, but the problem is we have this kind of amorphous, subjective avenue for judges to get into policy as to what a reasonable expectation of privacy is. Is it reasonable -- what do you look at? Justice Gorsuch has an excellent dissent where he talks about what do you look at to find out what's reasonable or not, and they really kind of tear apart Katz. But I think that in that footnote, Roberts explains, "Look, no one's asked us to overrule it or question it, so we'll look at property, but we have to look at reasonable expectation of privacy." I think that answers your question, and it was a huge thread that ran through the whole opinion, and it really, in a way -- you don't know what Roberts was actually thinking, but it seems like that whole concept could be in play down the road, depending on how Carpenter's progeny turns out as it percolates in circuit courts. So did that answer the question somewhat?
Caller 1: Yes, thank you.
Dean Mazzone: Okay. You're welcome.
Laura Flint: While we wait for another audience question, I'll ask one of my own. Were you surprised with how the justices broke down on this decision?
Dean Mazzone: Somewhat. It's interesting because Riley v. United States, which came out a few years earlier, which is also now very famous when it comes to Fourth Amendment law, which said that the government definitely needs a warrant to search through someone's cell phone. It's not just one of their personal effects like a wallet that, upon arrest, the police can look through because the technology had advanced so much that cell phones are different. And that was a unanimous opinion which I thought kind of surprised me at that time.
And having said that, Chief Justice Roberts kind of latches on to the whole technological advances and where technology advances so much—and he makes a big deal out of this in the majority opinion—that it changes the nature of what you're looking at, what the government wants, and it creates a reasonable expectation of privacy because the technology has advanced so far.
Having said that, I thought that there would be -- I was surprised by the level of dissent and how strong the dissents were and how much they questioned reasonable expectation of privacy, Kennedy especially. I was surprised by his dissent. It was very strong. I thought I saw or could detect more of a libertarian streak running through the whole court in terms of technology and privacy and phones and digital things. But if you think it through—and the dissents do this, and it's a lot to read but I urge people to read it because it's fun reading—if you think it through, there's a lot of conceptual problems with just saying, "Well, the technology has advanced so much, we have to recognize these privacy interests because that can kind of throw a whole lot of other doctrines and things out of whack."
So I was a little surprised that is was as close as it was, but I read the transcripts of the oral argument. I'm not necessarily surprised that Roberts landed where he did. I'm not surprised by the other people who are in the majority, but I was surprised at how vigorous and strong all the dissents were. So that's the end. I thought it would be actually not as close as it was.
Laura Flint: Do you expect more cases to be brought to the Court with exceptions to the third-party doctrine? Are there any in particular in the pipeline you'd like to highlight?
Dean Mazzone: Not any in particular that I know of or am aware of because I do think a lot of people were looking to this case. Although, obviously, there's some trial court somewhere where people are making objections and raising objections to these kinds of things, but I'm not sure how far along those things have got -- or how far along those things have gone. But Justice Alito raises in his dissent, he says, and I'll quote him, "The broad principles that the Court seems to embrace here will be applied across the board. All subpoenas…and all other orders compelling the production of documents will require a demonstration of probable cause, and individuals will be able to claim a protected Fourth Amendment interest in any sensitive personal information about them that is collected and owned by third parties."
So I think that's going to be a lot of the ground that's going to be fought on based on this because the majority opinion is like CSLI is a different type of evidence, and it's sensitive and it's personal. And what is sensitive and personal? The Court doesn't say. And I think that's where we're going to go. People are going to be subpoenaed and things that are in the hands of third parties, and they'll say, "No, no. We deserve Carpenter protection for that. This is more personal than the phone records. This is more personal than the bank records. This is more like CSLI." So I would expect -- I have no doubt that people are going to be challenging evidences from third parties on just those grounds going forward. I certainly would. I think you'd have a hard time -- judges, courts will have a hard time grappling with what makes CSLI different from whatever the sensitive information, arguably sensitive information is in the case before it.
Laura Flint: Not seeing any questions from the audience. Do you have any final remarks?
Dean Mazzone: Do I? No, except I would expect this isn't the end of the story when it comes to third party records. And again, it's a long opinion, but for anyone who is interested and is on the call, it's well worth investing the time to read for the intellectual stimulation, if nothing else.
Laura Flint: On behalf of The Federalist Society, I want to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at email@example.com. Thank you all for joining us. We are adjourned.