Great job this morning by @NateWessler, arguing in the Supreme Court to make sure we don’t have to sacrifice our privacy to use new technology.
A few thoughts on the argument:
A few thoughts on the argument:
Chief Justice Roberts may have set himself up to extend his Riley decision to cellular location data. Justice Alito argued many times that Carpenter is indistinguishable from Smith and Miller. 1/
Alito seemed unpersuaded that location data is any more sensitive than the call records from Smith. And he speculated that many people understand they volunteer their location data to the telecoms. Justice Kennedy said the same. 2/
When the government’s lawyer made the same argument about voluntariness, CJ Roberts cut it off, saying the court had rejected the argument in Riley that the choice to use cellphones is, today, voluntary. 3/
That may be the lynchpin for an opinion by CJ Roberts, joined by Ginsburg, Breyer, Sotomayor, and Kagan, JJ, finding that cellular location tracking is a search under the Fourth Amendment. 4/
Expect Justice Gorsuch to carry on Justice Scalia’s tradition of analyzing modern surveillance in terms of property rights. Customers own their location data, he posited, and so subpoenas for it are searches or seizures. 5/
What about Justices Alito, Kennedy, and Thomas? Harder to read. Alito seemed to view the case as different from Jones; Kennedy appeared skeptical it could be distinguished from Smith/Miller; and Thomas stayed silent. 6/
Always risky to speculate about the outcome, but a majority of the Court seemed persuaded of one rationale or another for ruling in Carpenter’s favor.
If so, this case could be the digital-age Katz, without the disastrous Olmstead detour. /end
If so, this case could be the digital-age Katz, without the disastrous Olmstead detour. /end
