Kopf: Can You Hear Me Now?

In this post, I make several random observations about the Carpenter cell phone ping-records case. There is no particular order to my musings.

First Random Observation: Despite the fact that he and I almost got into a naked mud wrestling match over another Fourth Amendment issue, I agree with Professor Orin Kerr’s point of view in the Carpenter case. Among other things, he argues in his amicus brief (at page 3) that:

Obtaining historical cell-site records from a cell phone provider is like obtaining testimony from an eyewitness to suspicious conduct. By contracting with a cell phone network provider to deliver their calls, customers ensure that network providers may be available to testify – whether in person or by sending records – about how the providers made that delivery for their users. Just as a person voluntarily exposes himself to observation by traveling in public to deliver a communication, so does a person voluntarily expose himself to observation by hiring an agent to deliver his communications remotely. The Fourth Amendment is not implicated by compelling testimony from an eyewitness or by observation in public.

Kerr’s argument is elegant in its simplicity and clarity!

Second Random Observation: Carpenter argues that he had a reasonable expectation of privacy in the business records of the phone carriers. His argument goes something like this:

I am a simple naïf (albeit it with a nasty violent streak). I had no idea that my phone would send pings to towers. (I thought the phone worked by magic.) Nor did I ever in the world imagine that the providers would keep records of those pings so that they could bill me and otherwise provide me with the cell phone service that I used to organize my attempt to liberate treasure from the unworthy.

My response: The devices are called “cell” phones for a reason, you moron! And you knew damn well that nothing is free (except that which you steal).

Third Random Observation:   The government got the cell phone ping records pursuant to a federal court order issued under the Stored Communications Act, which required the government to show “reasonable grounds” for believing that the records were “relevant and material to an ongoing investigation.” 18 U.S.C. § 2703(d) (“A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”)

Why doesn’t that statute strike a perfectly “reasonable”[i] balance under the Fourth Amendment?

Fourth Random Observation: Taking time off from endeavoring to trap Trump for the Machiavellian Mr. Mueller, Deputy Solicitor General Michael R. Drebben, a career DOJ lawyer with more than 100 oral arguments before the Court, wrote about a little thing called “precedent”:

This Court has long held that an individual cannot invoke the Fourth Amendment to object to the government’s acquisition of a third party’s records that contain information about the individual. See Smith v. Maryland, 442 U.S. 735 (1979) (records of dialed calls); United States v. Miller, 425 U.S. 435 (1976) (banking records).

Brief of the United States at 11.

If the Justices determine that these cases don’t apply but refuse to overrule them, I double dog damn dare them to provide a principled distinction.

Fifth Random Observation: Carpenter admits that “there is some period of time for which the government may obtain a person’s historical [cell-site information] free from Fourth Amendment scrutiny, because the duration is too brief to implicate the person’s reasonable privacy interest.” Carpenter’s Brief at 30 (brackets, citation, and internal quotation marks omitted).[ii]

The government, jumping on this concession, argues that at least some of the records would fall into this gaping hole. “Applying that analysis, agents did not need a warrant to request seven days of cell-site information from Sprint. Law enforcement agents regularly surveil suspects for a week or more.” Brief of United States at 56.

It will be funnier than watching a barrel of meth monkeys to read how the Justices articulate a principled line of demarcation if they otherwise decide to rule in favor of Carpenter.

Sixth Random Observation: Carpenter is serving a 1,395-month sentence. Even if the Justices rule in his favor. he will be sad.

In Illinois v. Krull, the Supreme Court extended the good-faith exception articulated in Leon to evidence obtained in reasonable reliance on a statute that is subsequently declared unconstitutional. Upon remand, assuming the Justices issue a ruling declaring 18 U.S.C. § 2703(d) unconstitutional, the Sixth Circuit will properly utter a one word rejoinder to Carpenter:

Have a productive day.

Richard G. Kopf
Senior United States District Judge (Nebraska)

[i] Perhaps I am simple minded, but the Fourth Amendment only protects “against unreasonable searches and seizures.” (Italics by Kopf.)

[ii] He had to acknowledge this because it is plain as the large nose on my ugly face that the cops could physically follow him all they wanted.

22 thoughts on “Kopf: Can You Hear Me Now?

  1. Paul

    Judge,

    Re: point 2. If it turned out cars collected your location information in detail and transmitted it to shell or Exxon without you knowing every time you fueled up, would you be ok with the government going to Exxon for location information? He may be a moron but can a person be expected to fully understand the details and intricacies of every single technology they use? Can I voluntarily give data to a third party if I do not know I am giving that data?

    1. LocoYokel

      They do this already, have you heard of OnStar? Even if you are not subscribed it is transmitting detailed GPS data back to the manufacturer. There is no way to disable it except to remove the radio, which also disables the ignition.

        1. LocoYokel

          Ford’s doing it too and the others are jumping in. Tesla openly admits it. Any of the services that find your car or unlock, or start it with a cellphone app are doing the same thing. Can’t get away from it anymore as it’s rapidly becoming unlawful to drive the older cars without this technology for different reasons in certain locales.

  2. wilbur

    I skimmed the defendant’s brief and, as expected, they were hanging their hat on the Jones case. The loss of Justice Scalia won’t help them.

    1,395 months? By my less-than-stellar math, that comes out to over 116 years. Not even Manson lived that long.

  3. shg

    I have fond memories of Sundays in Mary Donlon Hall, making the dreaded long distance call on my black, bakelite telephone to my mother at Liberty 8-5829. The sound was always perfect. It was a blessing that the telephone company charged by the minute, so I was limited to a two-minute conversation to confirm that I remained a sober matriculating virgin to my mother. Of course, those two minutes appeared on the phone bill, since they charged for every long distance call.

    Today, calls are commodities, and nobody gets charged by the call. So while it’s somewhat obvious that you have to link to the phone company’s cell site, there really isn’t any reason why they would need to keep any info on anyone since they don’t charge more or less by the location, number of calls or length of calls. Go figure!

    Yet, data is a commodity too, these days, so who knows what data they keep even though they have absolutely no use for it?

    1. Richard Kopf

      SHG,

      How do you suppose Verizon knows whether the tower is functioning properly without collecting ping data?

      All the best.

      RGK

  4. Drew

    Yes, they’re called “cell” phones for a reason, but that reason does not imply anything about the technology. Just a fairly random choice — we could just as easily have ended up with cellular ovens and microwave phones with no loss of descriptiveness.

    1. Richard Kopf

      Drew,

      At the Founding (of the cell phone era), it was clear to the Founders and their contemporaries what the words “cell phones” meant. Indeed, consult any dictionary of the times. Originalism is the bee’s knees!

      All the best.

      RGK

  5. Richard Kopf

    Paul,

    See my response to below to Loco. More seriously, you don’t engage Exxon to deliver location information to itself. On the other hand, you do engage Verizon to deliver messages to others.

    All the best.

    RGK

  6. kemn

    1) Does it require a warrant to surveil a suspect 24x7x365?

    2) How much does it cost the government to have a suspect monitored for their location 24x7x365 – how many officers/agents does it entail to do it without the person noticing they’re being monitored?

    Does saving that immense cost in 2) simply by asking a cell phone company for their records make a search unreasonable?

    And, if not, how do I find a cell phone carrier who won’t save my location data in perpetuity?

      1. Fubar

        A few more words:

        If you don’t want your cellphone to ping
        While you’re walking around with the thing,
        Then always engage
        A Faraday cage.
        As a bonus, it won’t ever ring!

  7. Richard Kopf

    Kemm,

    As to question 1, the answer is “no.” As for your other questions, I either don’t know or don’t understand. All the best.

    RGK

  8. Robert

    RGK-

    You write, “If the Justices determine that these cases don’t apply but refuse to overrule them, I double dog damn dare them to provide a principled distinction.”

    In the event the Justices do rule for Carpenter, do you think they will simply limit Smith and Miller to their analogue-world facts while noting (as they essentially did with cell phone contents in Riley) that cell site location information is “quite different”?

    If I read your thoughts aright, you too would be dismayed by such a punt. If the SC is going to provide the lower courts with any useful guidance, it *will* have to squarely acknowledge digital-world realities to establish digital-world principles for deciding digital-world cases; having to rely on analogue-world precedents generates too much uncertainty.

  9. Richard Kopf

    Robert,

    You have captured my view very well. That said, I am not convinced that there is a meaningful legal difference between the digital world and the analog world when it comes to the Fourth Amendment. But any further discussion of that would send us down a rabbit hole.

    All the best.

    RGK

    1. Robert

      “I am not convinced that there is a meaningful legal difference between the digital world and the analog world when it comes to the Fourth Amendment.”

      I think you have struck upon an interesting topic for a future post. Whatever topic you choose to write about, as I do with SHG, I look forward to reading your thoughts.

      1. SHG

        I’ve dealt with that issue quite a few times in years past, as I am strongly against trying to analogize the digital world from existing physical world concepts. But I would bet Judge Kopf won’t agree with me at all. He can be very mean to me.

        1. Richard Kopf

          SHG,

          Given my low T at the advanced age of 71, please don’t deny me my last remaining passion–fucking with SHG.

          All the best.

          RGK

  10. Mark M.

    Gongrats. The fascinating commentary here won by a nose over the post. I also grokked alternative arguments, which I will shamelessly steal without blinking at all.

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