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Yonatan Zunger 🔥 @yonatanzunger
, 18 tweets, 3 min read Read on Twitter
Some really good news, for once: SCOTUS just held in Carpenter v US that police need a warrant to get cell phone location logs. The decision is thoughtful and deeply understands why continuous logs of someone's location are sensitive.…
Also, kudos to the @EFF for their amicus brief, which clearly helped the Court understand the technical issues well and reason about them intelligently!
(I'm still reading the decision, and will probably tweet various notes as I go through...)
Here's the court understanding that the sense in which one's location is "shared" with one's cell provider is not the same as the sense in which one "shares" financial information with one's bank, or with someone one does business with.
The decision is specific to location information, but it seems pretty clear that the reasoning would apply to any detailed record of a person's activities which is generated "in passing" and which would reveal details of a person's private life.
"this Court has never held that the Government may subpoena third parties for records in which the suspect has a reasonable expectation of privacy" — majority opinion specifically rebutting Alito's dissent. You can't get around warrants by dressing them up as 3P subpoenas.
"Under JUSTICE ALITO’s view, private letters, digital contents of a cell phone—any personal information reduced to document form, in fact—may be collected by subpoena for no reason other than “official curiosity.”" Note how they already reference non-location data.
(I need to get back to other work now, will read the dissents later...)
Here's the meat of Kennedy, Thomas, and Alito's dissent: Just because they provide near-perfect surveillance doesn't mean cell site records are different.
4th Amendment law is always about trying to balance legitimate needs of the state with legitimate interests of the individual — it's all about defining "unreasonable." But few 4A cases are this explicit about that being the difference, and this not being an issue of phrasing.
The difference between the majority opinion and the K/T/A dissent is very simple: the majority held that, even though this is a business record, the individual's privacy interest outweighs the government's interest, and the dissent disagreed.
(For the record, I think the majority was completely, 100%, right about this, and for all the right reasons.)
The dissent also trusts the FBI's estimates of how precise location data is, and seems to ignore the EFF's amicus brief, explaining how those estimates were wrong and getting more wrong.
The dissent is very focused on a property perspective of the 4A, emphasizing the "their" in "their persons, property, and effects." If something of yours, or something about you, is in someone else's possession then you have no privacy interest in it, they say.
One key counterargument to this is that if that information comes into someone else's possession as an inevitable consequence of daily life, that would mean you had no privacy interest in it at all, which in these circumstances would make the entire 4A meaningless.
(Which is basically what the majority opinion is saying, although it isn't quite so blunt about it)
I'm surprised the dissent goes so far. They're saying that the subject of these records has "no meaningful [privacy] interests in the records sought." If that were true, why would the government be seeking them?
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