Jus­tices un­easy about us­ing cell data against sus­pects

The Columbus Dispatch - - Nation&world - By Adam Lip­tak

WASH­ING­TON — At a lively Supreme Court ar­gu­ment Wed­nes­day, a ma­jor­ity of the jus­tices seemed trou­bled by the govern­ment’s abil­ity to ac­quire troves of dig­i­tal data with­out a war­rant.

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

At least five jus­tices seemed pre­pared to limit the govern­ment’s power to ob­tain records from cell­phone com­pa­nies show­ing their cus­tomers’ lo­ca­tions over long pe­ri­ods of time. But there was no con­sen­sus about a ra­tio­nale for a de­ci­sion or about how far the court was pre­pared to go to re­shape long-stand­ing con­sti­tu­tional doc­trines that al­low the govern­ment to ob­tain busi­ness records held by third par­ties.

The case con­cerns Ti­mothy Ivory Car­pen­ter, who was con­victed in rob­beries of Ra­dio Shack and T-Mo­bile stores in Michi­gan and Ohio, based in part on records pro­vided by his cel­lu­lar car­rier show­ing his move­ments over sev­eral months. Nathan Freed Wessler, a lawyer for Car­pen­ter, said pros­e­cu­tors had vi­o­lated the Fourth Amend­ment, which bars un­rea­son­able searches, by fail­ing to get a war­rant. Car­pen­ter is serv­ing a 116-year sen­tence.

A rul­ing in Car­pen­ter’s fa­vor could re­vise a fun­da­men­tal Fourth Amend­ment prin­ci­ple: that peo­ple have no rea­son­able ex­pec­ta­tion of pri­vacy when they vol­un­tar­ily turn over in­for­ma­tion to a third party, like a phone com­pany.

“This new tech­nol­ogy is rais­ing very se­ri­ous pri­vacy con­cerns,” Jus­tice Sa­muel Al­ito told Wessler, “but I need to know how much of ex­ist­ing prece­dent you want us to over­rule or de­clare ob­so­lete.”

The court’s de­ci­sion will ap­ply the Fourth Amend­ment, drafted in the 18th cen­tury, to a world in which peo­ple’s move­ments are con­tin­u­ally recorded by de­vices in their pock­ets and cars, by toll plazas and by tran­sit sys­tems.

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