Discord over surveillance: Justice Kennedy retires

Justice Kennedy had enough sense to step aside before most of the public would see that he was losing his grip. Evidence showed in his dissent from Carpenter v. United States. In this high-profile case, he failed to see a difference between business and personal data. Even Chief Justice Roberts–sometimes a backer of imperial government–saw the difference, described in the U.S. Supreme Court opinion released Friday, June 22.

Carpenter v. United States involved government use of cell-phone location-tracking data in a criminal case without obtaining either consent from a cell-phone owner or a search warrant. As Justice Roberts wrote, “Tracking a person’s past movements through [cell-phone data is]…detailed and encyclopedic…the Court has already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements.”

Interstate crime watch: The Carpenter case arose from interstate crimes in Michigan and Ohio. Through cell-phone location-tracking data, the FBI found that Timothy Carpenter, alleged ringleader of a crime gang, was near the sites of several armed robberies at the times they occurred. Carpenter was convicted by a federal district court jury and sentenced to more than 100 years in prison.

Informed by a confession from one of the robbers, the FBI might have been able to justify search warrants for cell-phone records under the Fourth Amendment. Instead it relied on exemptions found in the Electronic Communications Privacy Act of 1986. [Public Law 99-508] A key issue was whether locations tracked from cell phones are Constitutionally protected as elements of personal privacy. If so, the Fourth Amendment requirement for search warrants should apply to records of locations.

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

A so-called “third-party rule” derived from United States v. Miller and from Smith v. Maryland exempted data voluntarily sent to businesses from Fourth Amendment protections: bank transactions and manually keyed telephone numbers. However, those Supreme Court cases from 1976 and 1979 could not anticipate circumstances of the recent Carpenter v. United States case. Consumer cell-phone services were introduced to North America in the mid-1980s and grew slowly in early years, when they were very costly.

Surveillance: While they are powered on, cell phones sample the radio environment and silently exchange messages with transceivers so that they can respond to incoming calls and be ready to place outgoing calls. Most if not all cell-phone services keep records of silent messages that include cell-phone identifications and transceiver locations. Location tracking exposes cell-phone owners to continuous surveillance–a major threat against personal privacy.

The 2018 Carpenter case challenged whether the federal government can access location-tracking data for a criminal investigation without obtaining a search warrant. Joined by Justices Breyer, Ginsburg, Kagan and Sotomayor, the opinion from Chief Justice Roberts said no–citing among other cases Riley v. California, decided by the Supreme Court in 2014.

The Riley case arose from data contained within cell phones, not data acquired by cell-phone transceivers. As in the Carpenter case, however, data had been examined by law enforcement without obtaining consents or search warrants and had been used to convict cell-phone owners, who appealed. The Supreme Court opinion found a novel, qualitative factor in the “immense storage capacity” of cell phones, calling that “a digital record of nearly every aspect of their [owners'] lives.”

Confusion: The Supreme Court opinion in the 2014 Riley case was likewise written by Chief Justice Roberts and joined by Justices Breyer, Ginsburg, Kagan and Sotomayor. Justice Kennedy also joined that 2014 opinion, yet for the 2018 Carpenter case he wrote a carping dissent. It shows confusion, starting with a claim that the Carpenter case somehow involves “new technology.”

Justice Kennedy either knew or should easily have learned that technology relevant to the 2018 Carpenter case is older than technology relevant to the 2014 Riley case. He tried to invoke the “third-party rule” based on cases four decades ago. Only by comparison with the 1970s era of communications does either of the more recent cases involve “new technology.”

Justice Kennedy’s dissent failed to recognize changes in communication uses and technologies over the 39 years since Smith v. Maryland. It failed to distinguish the 2018 case from the 2014 case whose opinion he joined. He was unable to see that–unlike bank transactions or manually dialed telephone numbers–durable records linking individual cell phones to dates, times and locations are not essential to business services as usually provided in the United States but instead reflect personal information.

Justice Kennedy seemed to think cell phones are active only when “a cell-phone user makes a call, sends a text message or e-mail or gains access to the Internet.” His views suggest location data from cell-phone transceivers have been voluntarily sent to businesses and are subject to the “third-party rule.” At a late point in a long span on the Supreme Court, he faded to a shadow of his former presence.

– Craig Bolon, Brookline, MA, June 29, 2018


Todd Ruger, Justice Kennedy to retire from Supreme Court, Roll Call (Washington, DC), June 27, 2018

Adam Liptak, Supreme Court says warrants generally are necessary to collect cell-phone data, New York Times, June 22, 2018

Carpenter v. United States, U.S. Supreme Court, Case no. 16-402, June 22, 2018

Matthew Tokson, The Supreme Court’s cell-phone-tracking case has high stakes, New York, November 27, 2017

Orin Kerr, Supreme Court agrees to hear Carpenter v. United States, Washington Post, June 5, 2017

Riley v. California, U.S. Supreme Court, Case no. 13-132, June 25, 2014

Ken Schmidt, Wireless telecommunications timeline, Steel in the Air (Baldwinsville, NY), 2014

Smith v. Maryland, U.S. Supreme Court, Case no. 78-5374, June 20, 1979

United States v. Miller, U.S. Supreme Court, Case no. 74-1179, April 21, 1976

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