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George Will: Fourth Amendment & cellphones in the 21st century

George Will
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A federal appeals court has rolled back rules intended to deter irritating telemarketing robocalls, saying they were too broad.

WASHINGTON

Timothy Carpenter’s interest in smartphones has had two unintended consequences. It has drawn the Supreme Court deeper into ongoing debates about applying the Constitution’s Fourth Amendment to uses of digital technologies that have swiftly become integral to daily life. And the disagreement between Chief Justice John Roberts, who wrote the court’s decision disapproving how law enforcement convicted Carpenter, and Justice Clarence Thomas, the court’s implacable “originalist,” has illuminated an argument about how properly to construe the Constitution.

Carpenter’s gang stole smartphones from stores in and around Detroit. While doing this, his cellphone, like all such, was in constant contact with cell towers. Each tower makes time-stamped records of when and where a particular cellphone enters and leaves its area of coverage. The police, who had a confession from a participant in the robberies, got wireless carriers to produce data documenting Carpenter’s movements, which closely coincided with the locations of robberies.

Federal law says the government can obtain such records without a warrant by merely supplying “specific and articulable facts” supporting a reasonable belief that the records are relevant to a criminal investigation — a less exacting requirement than demonstrating “probable cause” for a warrant. At trial, Carpenter unsuccessfully sought to exclude the cell-tower data on the grounds that obtaining it should have required a warrant. The divided (5-4) Supreme Court agreed with Carpenter’s invocation of the Fourth Amendment, which says: “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 … particularly describing the place to be searched, and the persons or things to be seized.”

The average smartphone user does not intend to disclose his or her whereabouts. Hence the court has hitherto held that police “must generally obtain a warrant before searching the contents of a phone.”

Roberts insists that protecting “privacy” from new digital technologies accords with “Founding-era understandings” because the Founders’ “central aim” was to impede “surveillance” that is “too permeating.” Thomas strictly adheres to the Constitution’s text, which, he stresses, nowhere mentions “privacy.” The Fourth Amendment, he insists, secures individuals against unreasonable searches of “ their persons, houses, papers and effects.” By gathering carriers’ data, the government did not search Carpenter’s property.

There is a circularity to the court’s test of whether the public has a “reasonable expectation of privacy”: The court’s decisions powerfully shape the expectations that purport to control the decisions. And Thomas is right about the original public understanding of the Framers’ words. Roberts, however, is true to the Framers’ intent, which was to secure individuals from “unreasonable searches.”

The language is different; the intent is not. By focusing on the original public meaning of words rather than on original and unchanging purposes in changing contexts, Thomas intends to constrain courts. This, however, leaves other parts of the state — in this case, law enforcement — less constrained.

George F. Will is a columnist for The Washington Post. His email address is [email protected].

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