John Roberts

John Roberts

Heaven help us all as U.S. Supreme Court swing voter Anthony Kennedy announces his retirement and the Republicans gear up to nominate a conservative judge to replace him.

Pundits claim Chief Justice John Roberts is now the court’s swing voter, and while that remains to be seen, there is some evidence of it in a recent and crucial decision.

Recently, Roberts provided the crucial vote in which he joined with the four liberals of the court and determined that the government needs a warrant to search for cell phone location data. In an era in which privacy rights are eroding, this is a major decision.

Carpenter vs. U.S.

The case, Carpenter vs. U.S., involved police obtaining the cell phone data information of a robbery case suspect. The information helped convict him. However, the Fourth Amendment protects against unreasonable searches and seizures, and a search requires a warrant, which did not occur in this case.

Previously, the court ruled that information shared with a third party, such as a cell phone provider, is not considered private, so warrants are unnecessary. However, this brave new world in which we live means that almost everyone has a cell phone, and they don’t work without location sensing. That means the government can track the location of practically everybody at any time.

The ACLU attorney argued the case said that cell phone records could track virtually anything anybody does for years. He added that the case must address how the Fourth Amendment protects personal records held by companies. That includes not only our location but our emails, social media posts, smart device information on our dwellings and even our health.

Break from Precedent

The Court’s decision was a break from precedent. Smith vs. Maryland, decided in 1979, involved a woman who was robbed in Baltimore in 1976. She gave police a description of the robber and his car. Not long after, she received a phone call in which she was told to stand on her porch, and in doing so, she saw the robber’s vehicle drive by.

Police later ran a search on the license plate number and found the car was registered to a Michael Smith. After contacting the phone company, the police asked that a pen register, which records numbers dialed, be used for Smith’s phone.

When the register later recorded a phone call from Smith to his victim, the police were able to obtain a warrant and arrest him. During pretrial, Smith’s lawyer filed a motion suppressing pen register information because it was obtained without a warrant. The motion was denied, and Smith was convicted and sentenced to six years in prison.

Eventually, the case made its ways to the Supreme Court, which decided there was no expectation of privacy when numbers were dialed into the telephone, so a warrant was unnecessary and Smith’s conviction was upheld.

In Carpenter, Roberts wrote that when Smith was decided nearly 40 years ago, no one could foresee a day when most people would have a phone on their person 24/7. Not just a phone that accompanied them everywhere, but that recorded “a detailed and comprehensive record of the person’s movements … There is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today.”

Far Right Dogma

Meanwhile, while the rest of the world was evolving technologically, the conservative members of the court, excepting Roberts, are increasingly focusing on originalism, deciding cases on what they think the founders believed.

What the founder may have thought about cell phone technology is a stretch, but the Fourth Amendment spells out “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

Where does that leave cell phones? Three conservative members of the court cited the property rights of the cell phone company in collecting the data, not rights available to the actual user. Kennedy dissented because he thought the location information was too vague to constitute privacy. Roberts concluded his case by quoting Justice Frankfurter, who wrote when considering the latest tech of his time, radio and airplanes, “The Court must tread carefully in such cases, to ensure that we do not ‘embarrass the future.”