USJF on winning side in Supreme Court case to protect cell phone privacy:

The United States Justice Foundation is celebrating a major Fourth Amendment victory at the United States Supreme Court.

In a 5-4 ruling, the Supreme Court sided with the U.S. Justice Foundation and ruled in favor of greater constitutional protections from warrantless government searches of cell phone data. USJF filed an amicus brief in the case, Carpenter v. United States, in an effort to persuade justices of the importance of preserving property rights in the digital era.

“A person does not surrender all Fourth Amendment protection by venturing into the public sphere,” Chief Justice John Roberts wrote in his majority opinion. “We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information.”

The decision will require law enforcement agencies to obtain a search warrant before accessing extensive geolocation tracking data from a cellphone.

US Justice Foundation: Fighting Orwellian Tracking of Americans

Since 1980, the U.S. Justice Foundation has submitted testimony to the U.S. Senate on every Supreme Court appointee and routinely files amicus briefs in defense of constitutional principles. The Carpenter case was no exception and took up the matter of how to apply the Fourth Amendment right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” to cell phone geolocation data.

In its amicus brief, USJF and nearly a dozen other non-profit public interest organizations argued that the government has created a modern communications network that makes it impossible for citizens to protect their phone data from government intrusion.

“Indeed, in order to communicate in today’s modern world, defendants were forced onto government-controlled airwaves, on a government approved cellular network, using government mandated technology, transmitting government,” U.S. Justice Foundation wrote in an amicus brief. “Under such a system of pervasive control, the Orwellian tracking of Americans cannot be justified on a theory which presumes voluntary action and consent.”

During oral arguments, Justice Sonia Sotomayor echoed the U.S. Justice Foundation’s reference to George Orwell’s iconic novel Nineteen Eighty-Four.

“Most Americans, I still think, want to avoid Big Brother,” Justice Sonia Sotomayor said during oral arguments last fall. “They want to avoid the concept that government will be able to see and locate you anywhere you are at any point in time.”

Chief Justice Roberts: Cell Phone Akin to Ankle Monitor

Nearly 400 million cell phone service accounts operate in the United States, Chief Justice Roberts noted in his decision.

“A cellphone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters and other potentially revealing locales,” he wrote. “Accordingly, when the government tracks the location of a cellphone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.”

Government agencies submit requests to third parties for cell site location information, more commonly known as CSLI. According to Wired, AT&T and Verizon received approximately 125,000 requests from law enforcement for CSLI data in 2017.

“Rapid technological change inevitably outpaces the glacial evolution of the law and the Carpenter case is a perfect example,” writes legal commentator Curt Levey. “The location data in question was obtained under the Stored Communications Act (SCA), which did not require prosecutors to meet the “probable cause” standard of a warrant.”

USJF pointed out that, is “created by the cell phone user, which is created by the “labor of his body and the work of his hands” — and at his expense.” That argument resonated directly with Chief Justice Roberts, who wrote the majority opinion.

“In light of the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection.”

Gorsuch Dissent: Proof Trump Appointed Thoughtful, Conservative Justice

In addition to the victory for Fourth Amendment property rights, the Carpenter decision confirmed that President Donald J. Trump appointed a thoughtful conservative justice to the U.S. Supreme Court.

“Gorsuch’s acumen and comprehension of the issue is a thing of beauty and one everyone should take time to read, despite its length,” writes political commentator Taylor Millard. “Gorsuch should be applauded for his dissent and prodding of the majority towards a more originalist viewpoint of the Constitution. His arguments are beyond sound and something which is sorely missing in American legal theory – yet appears to be making a slight return.”

Although he dissented in the case, Justice Gorsuch’s opinion offered the strongest defense of property rights and indicated he would have gone even further than the majority in protecting constitutional principles.

Even our most private documents— those that, in other eras, we would have locked safely in a desk drawer or destroyed—now reside on third party servers,” Trump-appointed Justice Gorsuch wrote in his dissenting opinion. “Just because you entrust your data—in some cases, your modern-day papers and effects—to a third party may not mean you lose any Fourth Amendment interest in its contents.”

Gorsuch questioned the validity of the third-party doctrine established in United States v. Miller, a weak standard that allows government agencies to seize materials held by third-parties, such as financial institutions or technology companies.

“Justice Gorsuch is doing what a lot of Fourth Amendment scholars have wanted the Court as a whole to do for a long time — examine in a clear-headed way the meta question of how the Court decides whether something is a search,” writes Lior Strahilevitz, the Sidley Austin Professor of Law at the University of Chicago Law School.

Significant, But Narrow Ruling

Advocates for constitutional principles heralded the Carpenter ruling as an important victory.

“The importance of today’s ruling in Carpenter v. U.S. should not be underestimated,” points out Damon Root, a senior editor at Reason and author of Overruled: The Long War for Control of the U.S. Supreme Court. “Carpenter may well be remembered as the most significant decision issued this term.”

However, the decision was also narrow and left open the possibility for law enforcement agencies to obtain some cell phone data without a warrant.

“Roberts emphasized that today’s ruling “is a narrow one” that applies only to historical cell-site location records,” observes Amy Howe, a former editor and reporter for SCOTUSblog. “He took pains to point out that the ruling did not “express a view on” other privacy issues, such as obtaining cell-site location records in real time, or getting information about all of the phones that connected to a particular tower at a particular time.”Other organizations supporting U.S. Justice Foundation’s position include Gun Owners Foundation, Gun Owners of America, Inc., Citizens United, Citizens United Foundation, Downsize DC Foundation,, Conservative Legal Defense and Education Fund, The Heller Foundation, and Policy Analysis Center.


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