The U.S. Supreme Court will decide whether warrantless seizure of a person’s cell network usage records violates the Constitution. Of course it violates the Constitution — as the “third-party doctrine” has violated the Constitution’s prohibition on warrantless seizure of a person’s private communications. The sole reason why the attorney general claims we have no “reasonable expectation of privacy” in this case, is that the third-party doctrine causes that effect!

The policy remains unconstitutional, because warrantless seizure as it pertains to private communications is an unreasonable government action. At the time of the Fourth Amendment‘s adoption, in the 1790s, people communicated orally in-person or in writing via letters, all of which were obviously private unless they were issued to the public. A hundred years later, in the 1890s, when the telephone recorder became a thing, courts prohibited warrantless wiretaps for that same reason: unless the phone calls were made to the public, they were obviously a private communication.

Constitutionality of warrantless wiretaps

Consider Associate Justice Louis Brandeis’s opinion in the 1920s, from Olmstead v. United States. He acknowledged the telephone as “a public service furnished by its authority,” and saw no reason why a telephone call’s content should be less protected than the contents of mail. Moreover, he emphasized its greater importance in value to the private citizen:

“the evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails.”

Louis Brandeis, Supreme Court Associate Justice, in opinion of Olmstead v. United States

Forty years later, through its decision of Katz v. United States, in 1968, the court essentially affirmed Brandeis’ opinion:

“One who occupies [a telephone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.”

Potter Stewart, Supreme Court Justice, in opinion of Katz v. United States

“Reasonable expectation of privacy”

In Katz, the court, via Justice John Harlan’s opinion, established a limit to the Fourth Amendment’s protections. This is where we become acquainted with the definition of a “reasonable expectation of privacy.”

“(a) that an enclosed telephone booth is an area where, like a home, and unlike a field, a person has a constitutionally protected reasonable expectation of privacy; …”

John Marshall Harlan II, Supreme Court Justice, in opinion of Katz v. United States

In the case before the Supreme Court today, the government’s argument hinges on the assertion that the defendant, Timothy Carpenter, was engaged in a communication for which he had no reasonable expectation of privacy. Imagine how corrosive such an argument can be when it can be applied to the act of merely turning on your phone (which is what the government is arguing for)!

The portability of a cell phone — the variability of the origin of a placed call — is not a proper excuse for a wireless wiretap. It’s not even a proper excuse for a warranted one! Yet that is exactly what the attorney general argues against when he defends the government’s actions upon the “third-party doctrine.”

The “third-party doctrine”

In a nutshell, via Wikipedia’s article:

“The third-party doctrine is a United States legal theory that holds that people who voluntarily give information to third parties—such as banks, phone companies, internet service providers (ISPs), and e-mail servers—have “no reasonable expectation of privacy.” A lack of privacy protection allows the United States government to obtain information from third parties without a legal warrant and without otherwise complying with the Fourth Amendment prohibition…”

Wikipedia article on the third-party doctrine

So, the first question one asks should be, “do I voluntarily give my location information to the cell network providers when I use my phone?”

Do you have a capability to prevent the providers from knowing which of their cell network towers your phone is connecting to? Answer: no, you do not have that choice.

Would a person using a wired telephone 50 years ago have had the capability to prevent the phone network operators from knowing the location of the property where their line was installed? Of course not.

And so that begs the question: Why has the law been treating wireless communication privacy so differently?

How I see it, there’s no legitimate excuse for making an end-run around the Fourth Amendment that wouldn’t also apply to pre-cellphone era communications technology. Nothing prohibits law enforcement agencies from seeking warrants in accordance with the Fourth Amendment’s prescription to seize a private communication.

Your location privacy vs. [insert reason here]

The question before the court is essentially: When (if ever) should law enforcement agencies have permission to warrantless-ly know the location of a phone?

That’s a bigger question than “are they allowed to tap my phone calls without a warrant?” Yet, most media’s coverage is missing this point..

Fortunately, the folks writing for Wired are on point:

The justices will have to confront the fact that absent a ruling that requires police departments to obtain warrants to retrieve cell phone location data, cell phones will render our lives involuntarily transparent.
At its core, the Carpenter case is about whether Americans’ rights to privacy should turn on whether they “voluntarily” choose to have a cell phone.


I’ll be watching the Supreme Court’s developments about this case.