ROBERT SIEGEL, HOST:
Do police need a search warrant in order to obtain cellphone tracking information that's routinely kept by wireless providers? Well, that was the question in front of the U.S. Supreme Court today. A majority of the justices indicated they may be willing to impose new limits on the government's ability to access large amounts of information that's retained by private companies. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: The case arose out of a series of armed robberies in 2010 and '11 - robberies ironically aimed at stealing hundreds of new cellphones and selling them for tens of thousands of dollars. When police apprehended some of the members of the ring, the smaller fish identified the leader of the gang, Timothy Carpenter, whereupon the cops got a court order to get access to 127 days of cellphone tracking records for Carpenter and other members of the gang. Lo and behold, Carpenter's general location information matched the robbery locations, and that information was used to help convict him.
Prosecutors did get a court order before gaining access to the information, but they only had to show that they were seeking evidence relevant to a criminal investigation. Getting a search warrant is harder and requires more specific information. On the steps of the Supreme Court today, Carpenter's lawyer, Nathan Freed Wessler of the ACLU, explained why a search warrant should be required.
NATHAN FREED WESSLER: Access to these aggregations of our historical location records present the government with a veritable time machine, an ability to press rewind on someone's life and learn where we've been over weeks and months far into the past. That just upends the balance of power between the people and the government that the framers of the Fourth Amendment intended to put into place.
TOTENBERG: Inside the Supreme Court chamber, the justices seemed torn about whether to break with the so-called third party doctrine. Adopted decades ago, that doctrine says there is no reasonable expectation of privacy when an individual shares information with a third party, for example, the phone company, which knows what telephone numbers the individual calls and receives. Therefore, police do not have to get a search warrant to gain access to those numbers. But in recent years, the justices have expressed discomfort with that rule of law as applied to the modern digital age when cellphones carried in a person's pocket can track locations day and night and when email and text addresses tell a huge amount about an individual's contacts and lifestyle.
The dilemma was best illustrated when Deputy Solicitor General Michael Dreeben came to the lectern representing the prosecution. The technology here is new, he acknowledged, but the legal principles are not. The cellphone companies in this case function essentially as witnesses, being asked to produce business records of their own transactions with customers. Chief Justice Roberts objected, that the records are not simply created by the company. They are, he said, a joint venture, with the individual carrying the phone.
Justice Sotomayor contended that cellphones are different. I don't, she said with a smile, but most young people do have their phones in bed with them. It's an appendage. Dreeben replied that expectations of privacy grow out of the bedrock understanding that when a letter is mailed, the address on the envelope is available to the government but not the contents inside. In today's case, he said, the location tracking information obtained from the wireless provider is like that address on the envelope. Justice Kagan seemed to agree, noting that cell tower records can now track an individual 24/7.
But Dreeben stuck to his guns, maintaining that when people sign up with a wireless provider, they know that their locations can be tracked by cell towers. There's an element of voluntariness in signing up, he said, just as there is in getting a bank account or using a debit card. Chief Justice Roberts disagreed, noting that in a recent case the court had ruled that this is not a matter of choice in the modern digital world. People have to get a smartphone in order to function. Justice Gorsuch seconded that thought, declaring, Mr. Dreeben, it seems like your whole argument boils down to if we get it from a third party we're OK regardless of anything else.
Arguing the defendant's side of the case, the ACLU's Wessler faced equally difficult questions. After all, the prosecutors in this case did get a court order under the Stored Communications Act, which requires a judge to sign off upon a showing that the information is relevant to a criminal investigation. Justice Kennedy - in an area where it's difficult to draw a line, why shouldn't we give very significant weight to Congress' determination through the Stored Communications Act on where to draw that line? Frankly, he said, it seems to me that the normal expectation is that wireless providers have your cellphone data. I think everybody knows that. If I know it, everybody knows it.
Justice Breyer posed perhaps the most difficult question of the day from the law enforcement perspective. He noted that at the beginning of any investigation, be it into terrorism or organized crime, law enforcement does not have enough evidence to get a search warrant, so agents start by looking at financial records, credit card records and even the records of website searches. To require a search warrant for all of that would be to create an open box, warned Breyer. We know not where we go. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.